text:
as a first rescue for non-Italian speakers (which will at least be better than google translate!), I have prepared a very brief rough synopsis in bullet points which may be accessed here: http://bit.ly/1yt7fAD – This is very informal and it can be freely further circulated, but I do not take any responsibility as to how accurate it is etc.. For obvious reasons linked to my current employment, I cannot comment any further on these interesting developments.
PS: you should amend the title/text – it is the Italian Constitutional Court (Corte Costituzionale), not the Supreme Court of Cassation (Corte Suprema di Cassazione).
Thanks for bringing this to our attention, and thanks to Francesco for this most useful summary. All this sounds very much dualism, but dualism ‘à la carte’ — which is in some ways worse from the point of view of international law, even if all this is of course done for the benefit of fundamental rights (note however that the right to a judge is not considered absolute even under ECHR). Kadi signalled that dualism could be virtuous and it does not come as a surprise that domestic courts follow suit. What is both strange and interesting is that dualism is used in legal orders that present themselves as being very much “international-friendly”. But maybe all this is well beyond any systemic rationalization — maybe dualism is just of word for fundamental political choices. The result is of course heretic from the point of view of international law, unless and until it shares the same values… which seems to be the hidden hope of the constitutional court?
Thanks Christian and Francesco! I agree with Pierre’s observation on the dualism à la carte. Not unfamiliar from a German perspective if one sees how the German Constitutional Court is operating with the so-called “eternity clause”, embodying the supreme values of the constitutional order.
Of course it is easy to refer to Kadi here; everybody, including myself, like to refer to Kadi here; the Constitutional Court itself quotes Kadi, and this is one of the very few non-Italian citations (not a nice decision for the judicial-dialogue enthusiasts…).
However, this remains just an easy comparison; there are persistent structural differences between the CJEU and a domestic constitutional court, and I think it cannot be said that the Constitutional Court here followed suit from Kadi. This jurisprudence comes from a long-standing tradition, as that of Germany’s Constitutional Court to which Helmut is referring.
Moreover, the decision did not view the right to a judge as absolute. It was subject to proportionality balancing vis-à-vis the immunity rule; the balance was however inexorably in favour of the right to a judge IN THE CIRCUMSTANCES, ie, claims involving international crimes deprived of any alternative means of redress/remedy. Precisely the proportionality test that the ECtHR has avoided in its State immunity jurisprudence, preferring instead to use an ‘international law-compatibility’ sui generis (…) test.
I am afraid the dilemma ‘immunity vs access to justice’ will be with us for the years to come… Perhaps it is not useless to highlight that at the same time as the Constitutional Court published its decision, an American Federal judge was holding a hearing in the Cholera case against the United Nations, a case involving that same legal issue.
so we’re back to the same old issues, aren’t we – this time with a bit of ‘Kadi’ (curiously invoked, as Ricardo and Pierre note) and a dose of dualism added.
– another interesting perspective provided by the VERFASSUNGSBLOG, but this one in English: –> http://www.verfassungsblog.de/know-wrong-just-cant-right-first-impressions-judgment-238-2014-italian-constitutional-court/#.VE5F3YuG9PQ.
– a refreshing piece by Roger O’Keefe, who criticises the ‘HR v Immunity’ logic that underlies much of the debate (incl the CC judgment) and who does not just rehearse the predictable arguments: –> http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/OKeefe-cr.pdf.
1. The Opinion and Judgment of the International Military Tribunal at Nuremberg famously affirmed that representatives of a state “cannot shelter themselves behind their official position” with respect to “acts which are condemned as criminal by international law” and used the ultra vires rational while affirming that “[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.” The 1950 Principles of the Nuremberg Charter and Judgment adopted by the U.N. General Assembly affirmed that “[a]ny person who commits an act that constitutes a crime under international law is responsible therefor and liable to punishment” and stated more specifically that the fact that the person “acted as Head of State or responsible Government official does not relieve him from responsibility under international law.” Should these recognitions of nonimmunity for international crimes still prevail today? With respect to civil sanctions as well as criminal sanctions? Are they in jeopardy? What should be done to correct deviant practices globally and/or in the United States?
2. The majority opinion in the ICJ’s Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) concluded that a sitting Minister of Foreign Affairs “when abroad enjoys full immunity from criminal jurisdiction and inviolability” in another State, which protect “against any act of authority of another State which would hinder him or her in the performance of his our her duties.” There was hardly any citation of any sort in the opinion, although there was a terse reference to alleged state practice.
In sharp contrast, the dissenting opinion of Judge Van Den Wyngaert declared: “I see no evidence for the existence of such a norm, not in conventional or in customary international law.” She went on to criticize the lack of adequate attention to state practice and opinio juris and stated that the surprisingly short majority opinion “takes an extremely minimalist approach by adopting a very narrow interpretation of the ‘no immunity clauses’ in international instruments. Yet there are many codifications of this principle…, including the Nuremberg Principles and Article IV of the Genocide Convention…, several United Nations resolutions and reports…, a plethora of recent scholarly writings,” reports of various NGOs, and other court decisions.
Who had the better claim? Is there any international criminal instrument that expressly provides any sort of immunity for any sort of official? Is nonimmunity for criminal sanctions necessarily set forth in the Genocide Convention? In Articles 1(1) and 4-5 of the Convention Against Torture? In the preamble to and Articles 2 and 5 of the International Convention for the Protection of All Persons from Enforced Disappearance? Is nonimmunity for civil sanctions for human rights violations guaranteed in Article 2(3) of the ICCPR, especially in view of the phrase: “notwithstanding that the violation has been committed by persons acting in an official capacity”? In Article 25(1) of the American Convention on Human Rights? Is it time to abandon the ICJ majority opinion’s preference for “full immunity” for sitting officials before foreign courts? If so, should the international community recognize that some acts of officials are necessarily ultra vires, beyond the lawful authority of any government? Should U.S. courts?
3. The majority opinion Congo v. Belgium did note that “after a person ceases to hold office…, he or she will no longer enjoy all of the immunities.” Should there be any form of immunity for a former official who is reasonably accused of authorizing, perpetrating or facilitation an international crime over which there is universal jurisdiction? The preamble to the Rome Statute o the ICC expressly affirms the international community’s expectation “that the most serious crimes … must no go unpunished and that their effective prosecution must be ensured by taking measures at the national level,” adding “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” Does the majority opinion in Congo v. Belgium, which is clearly inconsistent, need to be revisited? Do U.S. efforts at prosecution, and the manifest lack thereof, stand in stark opposition? Is there a need for national redirection or transformation? What sort of options might exist?
4. The majority opinion in Congo v. Belgium also affirmed the decidedly clear point that an official can be “subject to criminal proceedings before certain international criminal courts where they have jurisdiction.” In fact, there is no prior or present international criminal court that must provide immunity for a sitting or former official. In particular, the Rome Statute of the ICC expressly affirms the determination of its creators “to put an end to impunity for the perpetrators of” core crimes addressed in the instrument and, in Article 27, the Statute expressly denies immunity with respect to the Court’s exercising of its jurisdiction. Should all new global and regional international criminal tribunals follow suit? Should the United States take action to join international efforts to end impunity?
Thanks for this heads-up, I would like to stress a point that is implicit in some of the comments but somewhat underrated in the early reactions. The Constitutional Court is not replicating the reasoning of Ferrini or the defense at The Hague. More precisely, the Constitutional Court does not harbour any intention to re-consider customary law; it only reviews the constitutionality of the internal effects of the ICJ’s judgment. In this sense, it resembles Kadi 2, in which the CJEU operates a proportionality test while stating repeatedly that it is not reviewing the UN SC Resolutions, but just the legality of the EU Regulations.

matches:
CJEU
sui generis
v.
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CJEU


These conditions for parking apply to parking space bookings (‘port parking’) via the online parking booking system of SEEHAFEN KIEL GmbH & Co. KG (hereafter referred to as PORT OF KIEL), as well as to parking in the Fördeparkhaus parking facility, located on Kai-Strasse 1–6, 24103 Kiel, Germany.
The booking request is an offer for the conclusion of a rental contract for a passenger car parking space in the Fördeparkhaus parking facility. The offer is binding and may be accepted by the PORT OF KIEL within seven calendar days after receipt by PORT OF KIEL in a booking confirmation via email. The rental contract for the passenger car parking space shall be concluded on receipt by the customer of the booking confirmation via email (notice of acceptance). After receipt of the booking confirmation, the renter must pay rent for the entire rental period. Payment is to be made via credit card (VISA and MasterCard) or by direct debit. Direct debit payment is only available for accounts with credit institutes based in Germany (payment transactions not requiring IBAN or BIC). For other account types, payment must be made via credit card (VISA and MasterCard). Upon receipt of the rental payment in the account stipulated, the renter will receive an access code via email, which allows a single entry to the Fördeparkhaus parking facility. Any vehicles without parking permission will be removed at a charge.
On completion of a rental contract, the PORT OF KIEL grants the customer the right to park their passenger vehicle at the parking facility on a single occasion and for the rental period agreed. Caravans and passenger vehicles with trailers will not be permitted. No right to a particular parking space is granted. Furthermore, vehicles may not be parked in any spaces that are reserved via notice signs for long-term users. Vehicles without valid parking permission will be removed at a charge. The right of usage may not be transferred to a third party and the access code is solely for personal use. Use of the parking facility is at the customer’s own risk. The PORT OF KIEL accepts absolutely no duty of care. The scope of the contract does not include any surveillance or safekeeping of the vehicles, nor is any insurance cover granted.
Rental prices are calculated according to the price list published at www.portparking.de. The actual amount of rental payment is based on the booking request. Payment is to be made immediately in advance of arrival. The prices include the statutory value-added tax.
The contracting parties in this respect are the PORT OF KIEL and myParkFlyUG (limited liability), Pappelallee 78, 10437 Berlin who are liable as joint debtors towards the User. That means, inter alia, that the contractual obligation of the one contracting party expires when the other party has provided the service. Events such as contestation or cancellation of the contract made with the renter or withdrawing from it, service delay or impossibility of performance by one of the contracting parties or any other of the events mentioned in § 425 Abs. 2 BGB (German Civil Code) always take effect for and against both contracting parties (contrary to § 425 Abs. 1 BGB). The PORT OF KIEL and myParkFly UG do not form a company but act for themselves. The PORT OF KIEL and myParkFly UG solely act on their own behalf towards the renter, unless something different has explicitly been stipulated. Although the PORT OF KIEL and myParkFly UG are both entitled to demand full payment, naturally the renter has to pay only once. However, the renter must consider that he must not make his payment to PORT OF KIEL and/or myParkFly UG at his discretion (contrary to § 428 S. 1 BGB) but solely to the one demanding payment of him (so-called “Unechte Gesamtgläubigerschaft”, § 428 S. 1 BGB). To this end, the renter only has to follow the instructions on the Port Parking Websites.
It is the PORT OF KIEL who is the renter’s point of contact for any questions about his parking space booking or the Port Parking Websites.
Consumers have the right of recession (see § 312 section. 1, § 355 BGB). According to § 13 BGB, a consumer is any natural person who concludes a legal transaction that is mostly neither related to their commercial nor their self-employed business.
You have the right to withdraw from the contract without giving any reasons within 14 days. The withdrawal period is fourteen days from the day of the contract conclusion. In order to excercise your right of recession you must inform us - SEEHAFEN KIEL GmbH & Co. KG, Schwedenkai 1, 24103 Kiel, T +49 431 9822-399, F +49 431 9822-138, portparking@portofkiel.com about your decision to withdraw from the contract by a clear statement. You can make use of the template attached, however, it is not mandatory. To comply with the notice period, it is sufficient to send the message about your exercising the right to recession before the notice period lapses.
If you withdraw from this contract, we are to refund any payments received from you immediately and within fourteen days from the day that we received your cancellation at the latest. For this reimbursement we will use the same method of payment that you used for your original transaction unless something different has been explicitly agreed with you; in no case will there be charged any fees to you due to this reimbursement. If you insisted on beginning the service during the withdrawal period, you are to pay us an appropriate amount corresponding to the ratio of the services provided up to the point in time where you informed us about your withdrawing from this contract in comparison to the overall scope of the services stipulated in the contract.
The renter may withdraw from the rental contract in advance of the agreed start of the rental period. Notification of withdrawal must be made either in writing, by fax or by email. Notification of withdrawal should be addressed to: SEEHAFEN KIEL GmbH & Co. KG, Schwedenkai 1, 24103 Kiel, Germany; fax: +49 (0)431 9822 138, email: portparking@portofkiel.com. The legal effectiveness of the withdrawal shall depend on the time of receipt of the notification of withdrawal by the PORT OF KIEL. The renter may withdraw from the contract free of charge up to 56 days before the start of the rental period. In the event of withdrawal later than this, the PORT OF KIEL has the right to demand payment of a withdrawal fee amounting to: 25% of the rental price for withdrawal up to 42 days before the start of the rental period; 50% of the rental price for withdrawal up to 14 days before the start of the rental period; 90% of the rental price for withdrawal up to 13 days before the start of the rental period. The renter shall be free to provide proof that no damages were incurred by the PORT OF KIEL or that the damages incurred were lower than the withdrawal fee agreed.
After expiry of the rental period, the renter must remove the passenger vehicle. In the event of non-compliance with this rule, the PORT OF KIEL reserves the right to remove the vehicle at the risk and expense of the renter. Furthermore, the PORT OF KIEL is entitled to compensation for use for the entire parking period until removal of the passenger vehicle amounting to the rental price as given in the price list.
The PORT OF KIEL is only liable for any damages caused by the PORT OF KIEL, its employees or any persons it has commissioned. The PORT OF KIEL is specifically not liable for any damages resulting from flooding, or for the damage, destruction or theft of passenger vehicles in the parking facility that is solely caused by the renter, other renters or any other third parties. The renter must report any damages to the PORT OF KIEL without delay, preferably before leaving the parking facility. Claims for damages will not be accepted where notification is not made promptly. The limitation of liability does not apply to damages arising from injury to life, body and health.
The renter is liable for all damages incurred by the PORT OF KIEL or third parties where these are due to the renter, their employees, parties commissioned by them or persons accompanying them. This also applies to any dirtying/pollution of the parking facility or any disposal of waste.
The PORT OF KIEL shall have a right of retention and a legal right of lien concerning the renter’s parked vehicle resulting from any claims derived from the rental contract.
• Passenger vehicles shall be parked within thin Fördeparkhaus parking facility on decks 6 and 7 in such a way that customers in neighbouring parking spaces can access their vehicles without difficulty.
• Traffic signs, markings and any other signs must be obeyed.
• The rules of the StVO (German road traffic act) apply.
• Customers must follow instructions given by PORT OF KIEL employees and any persons it has commissioned.
• Customers must drive at walking speed.
In the event of imminent risks or non-compliance with the conditions of parking, the PORT OF KIEL has the right to relocate or remove a vehicle from the parking facility at the expense and risk of the renter.
Data concerning orders and addresses is collected, stored and processed in so far as this is required for processing a booking and contract. The PORT OF KIEL commissions a service company with the processing of payments connected with contracts. In order to fulfil this task, the service company has access to the personal order and address data; however, use of this data for any other purposes is not permitted. No further transfer of the data to third parties shall occur, unless the PORT OF KIEL is obliged to do so according to mandatory provisions, or unless this is necessary for collecting fees. The renter consents to the use of their data under the aforementioned circumstances.
The laws of the Federal Republic of Germany shall apply. The place of performance and jurisdiction is Kiel, as far as such an agreement is permitted by law. Should one or more clauses of these conditions for parking be or become invalid, this shall not affect the validity of the remaining clauses.
The PORT OF KIEL is not willing to participate in any procedures for settling consumer disputes by an arbitration body and is not obliged to do so.
These conditions for parking apply to parking space bookings (‘port parking’) via the online parking booking system of SEEHAFEN KIEL GmbH & Co. KG (hereafter referred to as PORT OF KIEL), as well as to parking in the Parkhaus Altstadt parking facility, located on Flämische Straße 15, 24103 Kiel, Germany.
The booking request is an offer for the conclusion of a rental contract for a passenger car parking space in the Parkhaus Altstadt parking facility. The offer is binding and may be accepted by the PORT OF KIEL within seven calendar days after receipt by PORT OF KIEL in a booking confirmation via email. The rental contract for the passenger car parking space shall be concluded on receipt by the customer of the booking confirmation via email (notice of acceptance). After receipt of the booking confirmation, the renter must pay rent for the entire rental period. Payment is to be made via credit card (VISA and MasterCard) or by direct debit. Direct debit payment is only available for accounts with credit institutes based in Germany (payment transactions not requiring IBAN or BIC). For other account types, payment must be made via credit card (VISA and MasterCard). Upon receipt of the rental payment in the account stipulated, the renter will receive an access bar code via email, which allows a single entry to the Parkhaus Altstadt parking facility. Any vehicles without parking permission will be removed at a charge.
On completion of a rental contract, the PORT OF KIEL grants the customer the right to park their passenger vehicle in Deck 6 or 7 (preferably) of the parking facility on a single occasion and for the rental period agreed. Caravans and passenger vehicles with trailers will not be permitted. No right to a particular parking space is granted. Furthermore, vehicles may not be parked in any spaces that are reserved via notice signs for long-term users. Vehicles without valid parking permission will be removed at a charge. The right of usage may not be transferred to a third party and the access code is solely for personal use. Use of the parking facility is at the customer’s own risk. The PORT OF KIEL accepts absolutely no duty of care. The scope of the contract does not include any surveillance or safekeeping of the vehicles, nor is any insurance cover granted.
90% of the rental price for withdrawal up to 13 days before the start of the rental period.
The renter shall be free to provide proof that no damages were incurred by the PORT OF KIEL or that the damages incurred were lower than the withdrawal fee agreed.
• Passenger vehicles shall be parked within thin Parkhaus Altstadt parking facility in such a way that customers in neighbouring parking spaces can access their vehicles without difficulty.
• Smoking or the use of fire In the event of imminent risks or non-compliance with the conditions of parking, the PORT OF KIEL has the right to relocate or remove a vehicle from the parking facility at the expense and risk of the renter.
These conditions for parking apply to parking space bookings (‘port parking’) via the online parking booking system of SEEHAFEN KIEL GmbH & Co. KG (hereafter referred to as PORT OF KIEL), as well as to parking in the Berth No. 1 parking facility, located on Ostuferhafen, 24149 Kiel, Germany.
stipulated, the renter will receive a confirmation email with instructions on how to access the site. An employee on site will confirm the customer’s name and vehicle registration to authorise access to the car park. Any vehicles without parking permission will be removed at a charge.
parking permission will be removed at a charge. The car park is open on the arrival days of the cruise ship and on its return days after the ship has berthed. Vehicle pick up is possible on these days only. Access to the parking area resp. car pick up outside opening hours can be granted in exceptional cases against a charge. On the day of your return, the car park is open after the ship’s arrival. In emergencies, access may be granted at an extra charge outside of the opening times. The right of usage may not be transferred to a third party and the access code is solely for personal use. Use of the parking facility is at the customer’s own risk. The PORT OF KIEL accepts absolutely no duty of care. The scope of the contract does not include any surveillance or safekeeping of the vehicles, nor is any insurance cover granted.
If a renter selects payment by direct debit, MasterCard or VisaCard, the following special conditions apply: The contracting parties in this respect are the PORT OF KIEL and myParkFlyUG (limited liability), Pappelallee 78, 10437 Berlin who are liable as joint debtors towards the User. That means, inter alia, that the contractual obligation of the one contracting party expires when the other party has provided the service. Events such as contestation or cancellation of the contract made with the renter or withdrawing from it, service delay or impossibility of performance by one of the contracting parties or any other of the events mentioned in § 425 Abs. 2 BGB (German Civil Code) always take effect for and against both contracting parties (contrary to § 425 Abs. 1 BGB).
Port Parking Websites. It is the PORT OF KIEL who is the renter’s point of contact for any questions about his parking space booking or the Port Parking Websites.
Consumers have the right of recession (see § 312 g section. 1, § 355 BGB). According to § 13 BGB, a consumer is any natural person who concludes a legal transaction that is mostly neither related to their commercial nor their self-employed business.
portparking@portofkiel.com about your decision to withdraw from the contract by a clear statement. You can make use of the template attached, however, it is not mandatory. To comply with the notice period, it is sufficient to send the message about your exercising the right to recession before the notice period lapses.
The renter may withdraw from the rental contract in advance of the agreed start of the rental period. Notification of withdrawal must be made either in writing, by fax or by email. Notification of withdrawal should be addressed to: SEEHAFEN KIEL GmbH & Co. KG, Schwedenkai 1, 24103 Kiel, Germany; fax: +49 (0)431 9822 138, email: portparking@portofkiel.com.
The renter shall be free to provide proof that no damages were incurredby the PORT OF KIEL or that the damages incurred were lower than the withdrawal fee agreed.
The PORT OF KIEL is only liable for any damages caused by the PORT OF KIEL, its employees or any persons it has commissioned. The PORT OF KIEL is specifically not liable for any damages resulting from flooding, or for the damage, destruction or theft of passenger vehicles in the parking facility that is solely caused by the renter, other renters or any other third parties. The renter must report any damages to the PORT OF KIEL without delay, preferably before leaving the parking facility. Claims for damages will not be accepted where notification is not made promptly. The limitation of liability does not apply to damages arising from injury to life, body and health if the PORT OF KIEL is responsible for the injury and neither does it apply to damages caused by intent or grossly negligent violation of duty on the part of the PORT OF KIEL. A violation of duty on the part of the PORT OF KIEL is equal to that of a legal representative or vicarious agent.
Passenger vehicles shall be parked within Berth No. 1 parking facility in such a way that customers in neighbouring parking spaces can access their vehicles without difficulty.
Traffic signs, markings and any other signs must be obeyed.
The rules of the StVO (German road traffic act) apply.
Customers must follow instructions given by PORT OF KIEL employees and any persons it has commissioned.
Customers must drive at walking speed.
In the event of imminent risks or non-compliance with the conditions ofparking, the PORT OF KIEL has the right to relocate or remove a vehicle from the parking facility at the expense and risk of the renter.
however, use of this data for any other purposes is not permitted. No further transfer of the data to third parties shall occur, unless the PORT OF KIEL is obliged to do so according to mandatory provisions, or unless this is necessary for collecting fees. The renter consents to the use of their data under the aforementioned circumstances.
These conditions for parking apply to parking space bookings (‘port parking’) via the online parking booking system of SEEHAFEN KIEL GmbH & Co. KG (hereafter referred to as PORT OF KIEL), as well as to parking in the Norwegenkai parking facility, located on Zur Fähre, 24114 Kiel, Germany.
The booking request is an offer for the conclusion of a rental contract for a passenger car parking space at the Norwegenkai parking facility. The offer is binding and may be accepted by the PORT OF KIEL within seven calendar days after receipt by PORT OF KIEL in a booking confirmation via email. The rental contract for the passenger car parking space shall be concluded on receipt by the customer of the booking confirmation via email (notice of acceptance). After receipt of the booking confirmation, the renter must pay rent for the entire rental period. Payment is to be made via credit card (VISA and MasterCard) or by direct debit. Direct debit payment is only available for accounts with credit institutes based in Germany (payment transactions not requiring IBAN or BIC). For other account types, payment must be made via credit card (VISA and MasterCard). Upon receipt of the rental payment in the account stipulated, the renter will receive a confirmation email with instructions on how to access the site. An employee on site will confirm the customer’s name and vehicle registration to authorise access to the car park. Any vehicles without parking permission will be removed at a charge.
and exit the parking facility during the ship’s berthing time at Norwegenkai. In emergencies, access may be granted outside the berthing time at an extra charge. The right of usage may not be transferred to a third party and the access code is solely for personal use. Using the parking facility is at the customer’s own risk. The PORT OF KIEL accepts absolutely no duty of care. The scope of the contract does not include any surveillance or safekeeping of the vehicle, nor is any insurance cover granted.
• Passenger vehicles shall be parked within thin Norwegenkai parking facility in such a way that customers in neighbouring parking spaces can access their vehicles without difficulty.
Data concerning orders and addresses is collected, stored and processed in so far as this is required for processing a booking and contract.
The PORT OF KIEL commissions a service company with the processing of payments connected with contracts. In order to fulfil this task, the service company has access to the personal order and address data; however, use of this data for any other purposes is not permitted. No further transfer of the data to third parties shall occur, unless the PORT OF KIEL is obliged to do so according to mandatory provisions, or unless this is necessary for collecting fees. The renter consents to the use of their data under the aforementioned circumstances.
These conditions for parking apply to parking space bookings (‘port parking’) via the online parking booking system of SEEHAFEN KIEL GmbH & Co. KG (hereafter referred to as PORT OF KIEL), as well as to the car park located at Airport Kiel, Boelckestraße 100, 24159 Kiel, Germany.
The booking request is an offer for the conclusion of a rental contract for a passenger car parking space at the Airport Kiel parking facility. The offer is binding and may be accepted by the PORT OF KIEL within seven calendar days after receipt by PORT OF KIEL in a booking confirmation via email. The rental contract for the passenger car parking space shall be concluded on receipt by the customer of the booking confirmation via email (notice of acceptance). After receipt of the booking confirmation, the renter must pay rent for the entire rental period. Payment is to be made via credit card (VISA and MasterCard) or by direct debit. Upon receipt of the rental payment in the account stipulated, the renter will receive a confirmation email with instructions on how to access the site. An employee on site will confirm the customer’s name and vehicle registration to authorise access to the car park. Any vehicles without parking permission will be removed at a charge.
On completion of a rental contract, the PORT OF KIEL grants the customer the right to park their passenger vehicle on the parking facility Airport Kiel on a single occasion and for the rental period agreed. Passenger vehicles with trailers will not be permitted. No right to a particular parking space is granted. Vehicles without valid parking permission will be removed at a charge. The car park opens during the ship’s berthing time. On the day of your return, the car park is open after the ship’s arrival. In emergencies, access may be granted at an extra charge outside of the opening times. The right of usage may not be transferred to a third party and the access code is solely for personal use. Use of the parking facility is at the customer’s own risk. The PORT OF KIEL accepts absolutely no duty of care. The scope of the contract does not include any surveillance or safekeeping of the vehicles, nor is any insurance cover granted.
The renter may withdraw from the rental contract in advance of the agreed start of the rental period. Notification of withdrawal must be made either in writing, by fax or by email. Notification of withdrawal should be addressed to: SEEHAFEN KIEL GmbH & Co. KG, Schwedenkai 1, 24103 Kiel, Germany; fax: +49 (0)431 9822138, email: portparking@portofkiel.com.
The PORT OF KIEL is only liable for any damages caused by the PORT OF KIEL, its employees or any persons it has commissioned. The PORT OF KIEL is specifically not liable for any damages resulting from flooding, or for the damage, destruction or theft of passenger vehicles in the parking facility that is solely caused by the renter, other renters or any other third parties. The renter must report any damages to the PORT OF KIEL without delay, preferably before leaving the Airport Kiel parking facility. Claims for damages will not be accepted where notification is not made promptly. The limitation of liability does not apply to damages arising from injury to life, body and health.
•Passenger vehicles shall be parked within the Airport Kiel parking facility in such a way that customers in neighbouring parking spaces can access their vehicles without difficulty.
The PORT OF KIEL commissions a service company with the process-sing of payments connected with contracts. In order to fulfil this task, the service company has access to the personal order and address data; however, use of this data for any other purposes is not permitted.
No further transfer of the data to third parties shall occur, unless the PORT OF KIEL is obliged to do so according to mandatory provisions, or unless this is necessary for collecting fees. The renter consents to the use of their data under the aforementioned circumstances.
The laws of the Federal Republic of Germany shall apply.The place of performance and jurisdiction is Kiel, as far as such an agreement is permitted by law. Should one or more clauses of these conditions for parking be or become invalid, this shall not affect the validity of the remaining clauses.


Petitioner instituted proceedings under Chapter XI of the Bankruptcy Act, alleging inability to pay its debts as they matured. It had been converted from an operating company to a holding company with the shares of the subsidiaries pledged to creditors; and it had heavy short-term loans. It had no publicly held debts, but had over 2,000,000 shares of common stock listed on the American Stock Exchange and held by over 7,000 shareholders. A shareholder owning 3,000 shares, and the Securities and Exchange Commission, moved that the proceedings be dismissed unless the petition be amended to comply with Chapter X of the Bankruptcy Act.
Held: in deciding that proceedings under Chapter X, rather than Chapter XI, were appropriate, the discretion exercised by the District Court and the Court of Appeals did not transcend allowable bounds, and their judgment is affirmed. Pp. 350 U. S. 463 -468.
(a) In determining whether Chapter X or Chapter XI affords the appropriate remedy, the question is whether, on the facts of the case, the formulation of a plan under the auspices of disinterested trustees, as assured by Chapter X and the other protective provisions of that Chapter, would better serve the public and private interests concerned, including those of the debtor, than the simpler arrangement under Chapter XI. Pp. 350 U. S. 465 -466.
(b) The essential difference in the choice between Chapter X and Chapter XI is not between the small company and the large company, nor in the nature of the capital structure, but between the needs to be served. Pp. 350 U. S. 466 -467.
(c) The record in this case supports the view of the two lower courts that petitioner may need a more pervasive reorganization than is possible under Chapter XI. Pp. 350 U. S. 467 -468.
divided vote. 222 F.2d 234. The case is here on certiorari. 350 U.S. 809.
Petitioner, formerly known as D. A. Schulte, Inc., has operated for some years a chain of stores for the sale of tobacco and accessory products. Petitioner has also had a chain of difficulties. Its financial problems go back at least to 1936, when it filed a petition for reorganization under former § 77B of the Bankruptcy Act. After its reorganization was completed in 1940, it had a few years of prosperity followed by a postwar decline in volume of business, a rise in costs, and substantial losses. During these years, $600,000 cash was raised by the sale of stock, and a new management installed with a view to converting some existing stores into candy, food, and drink establishments. That idea was abandoned, and the proceeds of the stock sale were used for general corporate purposes. It was then decided to liquidate the existing specialty stores and to have petitioner acquire the stock of two existing retail drugstore chains -- Stineway Drug Company and Ford Hopkins Company. The Stineway stock was acquired for $1,220,320, petitioner borrowing $870,000 from Stineway for the purpose. Later, petitioner borrowed an additional $440,000 from Stineway to help make the down payment on the Ford Hopkins stock, making a total indebtedness to Stineway of $1,310,000, represented by two non-interest-bearing notes. The Ford Hopkins stock was acquired for $2,800,000, the down payment being $735,000, the balance being payable in a yearly amount of $200,000 with 4 per cent interest and secured by the Stineway and Ford Hopkins stock.
While the two drug chains were being acquired, petitioner started the liquidation of its own stores, a process that was completed under c. XI of the Bankruptcy Act. The disposition of those stores involved the rejection of numerous leases and the creation of claims of landlords against petitioner.
The arrangement proposed by petitioner under c. XI would extend its unsecured obligations and provide for a 20 per cent payment on confirmation of the plan and 20 per cent annually for 4 years thereafter. The claims listed were the $1,310,000 debt to Stineway and $525,000 unsecured claims, exclusive of claims by landlords. We were advised on oral argument that, during the course of the c. XI proceedings, it was decided that this offer was not feasible, and that the unsecured creditors are now offered the equivalent of 40 per cent of their claims in full satisfaction.
States Realty case presented a rather simple problem. There, one class of creditors was being asked to make sacrifices, while the position of the stockholders remained unimpaired ( id., 310 U. S. 453 -454, 310 U. S. 456 ), contrary to the teachings of Case v. Los Angeles Lumber Products Co., 308 U. S. 106 . Moreover, the history of the company raised a serious question "whether any fair and equitable arrangement in the best interest of creditors" could be effected "without some rearrangement of its capital structure." Id., 310 U. S. 456 . For those reasons, c. X was held to offer the appropriate relief.
The character of the debtor is not the controlling consideration in a choice between c. X and c. XI. Nor is the nature of the capital structure. It may well be that, in most cases where the debtor's securities are publicly held, c. X will afford the more appropriate remedy. But that is not necessarily so. A large company with publicly held securities may have as much need for a simple composition of unsecured debts as a smaller company. And there is no reason we can see why c. XI may not serve that end. The essential difference is not between the small company and the large company, but between the needs to be served.
Readjustment of all or a part of the debts of an insolvent company without sacrifice by the stockholders may violate the fundamental principle of a fair and equitable plan, see Case v. Los Angeles Lumber Products Co., supra, as the United States Realty Co. case emphasizes.
Readjustment of the debt structure of a company, without more, may be inadequate unless there is also an accounting by the management for misdeeds which caused the debacle.
Readjustment of the debts may be a minor problem compared with the need for new management. Without a new management, today's readjustment may be a temporary moratorium before a major collapse.
These are typical instances where c. X affords a more adequate remedy than c. XI. The appointment of a disinterested trustee, § 156, his broad powers of investigation, § 167, the role of the trustee in preparing a plan, § 169, the duty of the Securities and Exchange Commission to render an advisory report on the plan, § 172, the requirement that the plan be "fair and equitable, and feasible," §§ 174, 221, the power to include the subsidiaries, Stineway and Ford Hopkins, in the reorganization of petitioner, § 129 -- these are controls which c. X gives to the entire community of interest in the company being reorganized, and which are lacking under c. XI. These controls are essential both where a complicated debt structure must be readjusted and where a sound discretion indicates either that there must be an accounting from the management or that a new management is necessary. Those conditions only illustrate the need for c. X. There may be others equally compelling.
a merger of the subsidiaries with the holding company, and, second, a funding of the unsecured debt and a realignment of debt and stock so as to give a balanced capital structure. The old business has been liquidated, and the new one launched with heavy borrowings on a short-term basis. If the new one is to succeed, it may well need a more thoroughgoing capital readjustment than is possible under c. XI. That was the view of two lower courts. We could reverse them only if their exercise of discretion transcended the allowable bounds. We cannot say that it does. Rather, we think that the lower courts took a fair reading of c. X and the functions it serves and reasonably concluded that this business needed a more pervasive reorganization than is available under c. XI.
representing two-tenths of one percent of the common stock of the debtor. There is no suggestion of fraud or other improper behavior on the part of the management of the debtor, which has suffered business misadventure apparently attributable to changes in consumer response to the type of business conducted by the original Schulte tobacco stores. The District Court dismissed the petition under Chapter XI, with leave to the debtor to meet the requirements of reorganization under Chapter X. * 129 F.Supp. 801. A divided Court of Appeals sustained the District Court, 222 F.2d 234, and its judgment is here affirmed.
The essence of this Court's decision is that the District Court acted as it did in the exercise of allowable discretion. But, if the exercise of discretion by the District Court was guided by inappropriate standards, its exercise of discretion is left without a supporting basis, and cannot stand. Such, I believe, is the situation here.
of corporations with complicated debt structures and many stockholders, the other to composition of debts of small individual business and corporations with few stockholders. . . ."
310 U. S. 310 U.S. 434, 310 U. S. 447 .
"does not mean that there is no scope for application of that chapter in many cases where the debtor's financial business and corporate structure differ from respondent's."
310 U.S. at 310 U. S. 454 .
court under one chapter rather than the other."
310 U.S. at 310 U. S. 447 .
"a corporation with 7,000 holders of two and a quarter million shares of stock listed on the American Stock Exchange and recently selling at under two dollars a share."
129 F.Supp. 801, 805. Such a basis for judgment disregards the informal, efficient, and economical procedure for financial readjustments of a corporation with its creditors where no change in the capital structure is involved, where no charge of impropriety in corporate management is intimated, where all the creditors urge that the proposed arrangement is for their "best interests," § 366 of the Chandler Act, 52 Stat. 840, 911, and where a refusal to entertain the arrangement would work real hardship to 174 wage claimants.
Cong., 2d Sess. 21.) Even if the "fair and equitable" rule were still in Chapter XI, there is nothing in the facts of this case to show that the arrangement would not satisfy that requirement, for we have noted that the plan of arrangement here, unlike the situation in Realty, leaves untouched the position of the security holders. Since the Realty decision to no small degree turned on the enforcement of the "fair and equitable" rule, it is noteworthy that no consideration was given by the lower courts, and none is given by this Court, to the significance of this amendment by Congress. One would suppose that the elimination, in 1952, of this drastic requirement is the clearest possible indication that Chapter XI should be given a more generous scope than even the narrowest reading of Realty might suggest. Chapter XI should not be shriveled in its availability.
* At the time of the realty decision, if a proceeding was found to have been improperly brought under Chapter XI, it had to be dismissed, and a proceeding started anew under Chapter X. Section 20 of the Act of July 7, 1952, amended the law so as to allow a transfer of a Chapter XI proceeding, if improperly filed thereunder, to Chapter X. 66 Stat. 420, 432, and see H.R.Rep. No. 2320, 82d Cong., 2d Sess. 19.


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The paper deals with the contemporary Ukrainian historic-philosophical investigations of phenomenology and hermeneutics. Phenomenology and hermeneutics are treated on the one hand as trends in the modern philosophy, on the other hand as methods of historical and philosophical research. The author also shows that phenomenology is considered by contemporary Ukrainian scholars as philosophy of experience.
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Tiffany APPLEWHITE, an Infant, by Samantha Applewhite, Her Mother and Natural Guardian, et al., Respondents, v. ACCUHEALTH, INC., et al., Defendants, and City of New York, Appellant.
Michael A. Cardozo, Corporation Counsel, New York City (Drake A. Colley, Fay Leoussis, Amy G. London, Margaret G. King and Edward F.X. Hart of counsel), for appellant. Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Thomas A. Moore of counsel), Norman Bard and Murray S. Axelrod, for respondents.
John A. Mancini, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a “special duty” to the injured party. Based on the specific allegations interposed in this case, plaintiffs have adequately established questions of fact on the applicability of the special duty doctrine, thereby precluding summary judgment for the municipal defendants.
In 1998, plaintiff Tiffany Applewhite suffered from uveitis, an eye condition, which required the intravenous administration of a prescribed medication. After a visiting nurse injected Tiffany with the drug at her home, the 12–year–old girl experienced an episode of anaphylactic shock. When Tiffany's breathing difficulties worsened, her mother dialed 911 seeking assistance. While the nurse performed whatever emergency care that she could provide, Tiffany had a seizure followed by cardiac arrest.
Within minutes after the 911 call was placed, two emergency medical technicians (EMTs) employed by the New York City Fire Department arrived at the Applewhite apartment, having traveled in a basic life support ambulance. The EMTs had been dispatched because no advanced life support (ALS) ambulance transporting paramedics was available at the time. One EMT immediately began performing cardiopulmonary resuscitation (CPR) on Tiffany while the other called for an ALS ambulance and then retrieved equipment from the ambulance.
At some point, Tiffany's mother allegedly requested that the EMTs transport Tiffany to nearby Montefiore Hospital. The EMT continued to conduct CPR on Tiffany until paramedics from a private hospital, who arrived in an ALS ambulance, appeared at the scene. The paramedics injected Tiffany with epinephrine to counter the effects of anaphylactic shock, intubated her, administered oxygen and then transported her to Montefiore Hospital. Tiffany survived the ordeal but tragically suffered serious brain damage.
Tiffany and her mother commenced this action against the nurse, her employer (Accuhealth, Inc.), and the City of New York and its emergency medical services (EMS). Accuhealth dissolved in bankruptcy and the lawsuit against the nurse was settled. Thus, the only claims that remain outstanding are those against the municipal defendants (referred to collectively as the City).
The City moved for summary judgment, primarily contending that it was immune from liability because it did not owe a special duty to plaintiffs. In the alternative, the City maintained that the actions of its personnel were not the proximate cause of Tiffany's injuries; rather, Tiffany's allergic reaction was the result of the drug administered to the child by the nurse. Supreme Court granted the City's motion, concluding that plaintiffs could not prove that the City owed them a special duty or that the municipal defendants were the proximate cause of the harm.
The Appellate Division reversed and reinstated the claims against the City (90 A.D.3d 501, 934 N.Y.S.2d 164 [1st Dept.2011] ). It determined that the City's emergency medical response was governmental in nature, but found that plaintiffs raised triable issues of fact as to whether the City had assumed a special duty to plaintiffs and whether it proximately caused their injuries. The Appellate Division certified a question to us asking if its decision was correct.
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's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties ( see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 446–447, 933 N.Y.S.2d 164, 957 N.E.2d 733 ,cert. denied sub nom. Ruiz v. Port Auth. of New York & New Jersey, 568 U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 28  ). A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878  [internal quotation marks omitted] ). 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” ( id. [internal quotation marks omitted] ).
Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide ( see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 446–447, 933 N.Y.S.2d 164, 957 N.E.2d 733;Sebastian, 93 N.Y.2d at 793–794, 698 N.Y.S.2d 601, 720 N.E.2d 878). Police and fire protection are examples of long-recognized, quintessential governmental functions ( see e.g. Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 ;Harland Enters. v. Commander Oil Corp., 64 N.Y.2d 708, 709, 485 N.Y.S.2d 733, 475 N.E.2d 104  ). Additional examples include security operations at the World Trade Center ( see Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d at 450, 933 N.Y.S.2d 164, 957 N.E.2d 733); oversight of juvenile delinquents ( see Sebastian, 93 N.Y.2d at 796, 698 N.Y.S.2d 601, 720 N.E.2d 878); issuance of building permits or certificates of occupancy ( see Rottkamp v. Young, 15 N.Y.2d 831, 833, 257 N.Y.S.2d 944, 205 N.E.2d 866 ,affg. 21 A.D.2d 373, 249 N.Y.S.2d 330 [2d Dept.1964]; Worth Distribs. v. Latham, 59 N.Y.2d 231, 237, 464 N.Y.S.2d 435, 451 N.E.2d 193  ); certifying compliance with fire safety codes ( see Garrett v. Holiday Inns, 58 N.Y.2d 253, 261–262, 460 N.Y.S.2d 774, 447 N.E.2d 717  ); teacher supervision of a public school playground ( see Bonner v. City of New York, 73 N.Y.2d 930, 932, 539 N.Y.S.2d 728, 536 N.E.2d 1147  ); boat inspections ( see Metz v. State of New York, 20 N.Y.3d 175, 179–180, 958 N.Y.S.2d 314, 982 N.E.2d 76  ); and garbage collection ( see Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 194–195, 159 N.Y.S.2d 145, 140 N.E.2d 241  ). On the other hand, we have recognized that certain medical services delivered by the government in hospital-type settings are more akin to private, proprietary conduct ( see e.g. Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883 ;Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592, 695 N.Y.S.2d 39, 716 N.E.2d 1084 ;Matter of Murray v. City of New York, 30 N.Y.2d 113, 331 N.Y.S.2d 9, 282 N.E.2d 103  ). As a general rule, the distinction is that the government will be subject to ordinary tort liability if it negligently provides “services that traditionally have been supplied by the private sector” ( Sebastian, 93 N.Y.2d at 795, 698 N.Y.S.2d 601, 720 N.E.2d 878).
If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “ ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” ( Valdez, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356, quoting Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184  ). We have recognized that a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition ( see e.g. Metz, 20 N.Y.3d at 180, 958 N.Y.S.2d 314, 982 N.E.2d 76). It is the plaintiffs obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself ( see Lauer, 95 N.Y.2d at 100, 711 N.Y.S.2d 112, 733 N.E.2d 184;see also Valdez, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity.
Contrary to the parties' arguments, our precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to the special duty analysis ( see generally McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ;Schuster v. City of New York, 5 N.Y.2d 75, 82, 180 N.Y.S.2d 265, 154 N.E.2d 534  ).
In this case, the parties dispute whether the City exercised a governmental or proprietary function when the EMTs initiated emergency care. The City asserts that the provision of 911 referrals and emergency medical service responses are within the traditional responsibilities of municipal government, similar in nature to emergency fire protection services. Plaintiffs, however, maintain that the governmental function terminated with the arrival of the EMTs at Tiffany's home and a proprietary function arose once emergency medical care was undertaken since treatment of this nature is generally offered by private parties (e.g., doctors and hospital personnel) and the City charges fees for its ambulance services. Consistent with their respective arguments, the City asserts that plaintiffs failed, as a matter of law, to establish triable issues of fact pertaining to the creation of a special relationship, and plaintiffs urge that summary judgment was inappropriate because there are factual disputes to be resolved before the issue of special duty can be determined.
Although the City claims that plaintiffs were required to specifically plead the existence of a special duty in their complaint, we decline to address this issue because it was not properly raised in Supreme Court. Additionally, the City does not challenge the Appellate Division's determination that the EMTs were “acting in a ministerial capacity” (90 A.D.3d at 503, 934 N.Y.S.2d 164).
In Laratro v. City of New York, 8 N.Y.3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95 (2006), the plaintiff sued the City for responding too slowly to a 911 call (the ambulance took 35 minutes to arrive, as opposed to the several-minute response time in this case). Our analysis began with the recognition that “[p]rotecting health and safety is one of municipal government's most important duties” ( id. at 81, 828 N.Y.S.2d 280, 861 N.E.2d 95) and this responsibility extends to “the duty to provide police protection, fire protection or ambulance service ” to the general public ( id. at 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95 [emphasis added] ). We proceeded to determine whether the plaintiff had sufficiently established the existence of a special duty—an inquiry that would have been unnecessary had we viewed the City's response to the 911 call as a proprietary function. Hence, we have previously viewed municipal emergency systems and responses to 911 calls to be within the sphere of governmental functions.
Our concurring colleagues contend that the EMTs acted in a proprietary capacity when they began to render aid, equating their conduct with medical services such as mental health care see Schrempf v. State of New York, 66 N.Y.2d 289, 496 N.Y.S.2d 973, 487 N.E.2d 883  ), obstetrics ( see Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592, 695 N.Y.S.2d 39, 716 N.E.2d 1084  ) and surgery ( see Matter of Murray v. City of New York, 30 N.Y.2d 113, 331 N.Y.S.2d 9, 282 N.E.2d 103  ). In those situations, however, the “governmental activities ... displaced or supplemented traditionally private enterprises” ( Riss v. City of New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860  ). Emergency medical services, in contrast, have widely been considered one of government's critical duties ( see e.g. 1982 Ops St Comp No. 82–182; Edwards v. City of Portsmouth, 237 Va. 167, 171, 375 S.E.2d 747, 750 ;Ross v. Consumers Power Co., 420 Mich. 567, 654, 363 N.W.2d 641, 677 ;King v. Williams, 5 Ohio St.3d 137, 140, 449 N.E.2d 452, 455 ;Thornton v. Shore, 233 Kan. 737, 742, 666 P.2d 655, 659 ;McIver v. Smith, 134 N.C.App. 583, 587, 518 S.E.2d 522, 525 ;Wanzer v. District of Columbia, 580 A.2d 127, 131 [D.C.Ct.App.1990]; Ayala v. City of Corpus Christi, 507 S.W.2d 324, 328 [Tx.Civ.App.1974]; Smith v. City of Lexington, 307 S.W.2d 568, 569–570 [Ky.Ct.App.1957] ).
Consistent with this view and our reasoning in Laratro, 8 N.Y.3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95, we believe that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function—certainly no less so than municipal garbage collectors and school playground supervisors ( see Nehrbas, 2 N.Y.2d at 194–195, 159 N.Y.S.2d 145, 140 N.E.2d 241;Bonner, 73 N.Y.2d at 932, 539 N.Y.S.2d 728, 536 N.E.2d 1147;see also Edwards v. City of Portsmouth, 237 Va. at 171, 375 S.E.2d at 750)—because they exist “for the protection and safety of the public” and not as a “substitute for ... private enterprises” ( Sebastian, 93 N.Y.2d at 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [internal quotation marks omitted] ). The facts of this case reinforce this view since the purportedly negligent EMTs were employees of the City's fire department using City resources in an effort to fulfill the City's obligation to answer an emergency 911 dispatch and attempt to save Tiffany Applewhite's life. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in New York City is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa ( see Edwards v. City of Portsmouth, 237 Va. at 171–172, 375 S.E.2d at 750 [“the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens”] ). Nor does the City's policy of charging a fee for its ambulance service ( see 3 RCNY 4900–02[b] ) alter the analysis because it is designed to defray the cost of maintaining this essential component of the City's emergency response system, not to create a profit for the taxpayers ( seeGeneral Municipal Law § 122–b ; 2005 Ops St Comp No. 05–8; see also Wanzer, 580 A.2d at 131;Edwards, 237 Va. at 172, 375 S.E.2d at 750;Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 [Ct.App.2007]; McIver v. Smith, 134 N.C.App. at 587, 518 S.E.2d at 526).
In fact, as Judge Abdus–Salaam's concurrence observes ( see concurring op. at 437, 972 N.Y.S.2d at 181, 995 N.E.2d at 143), government-operated ambulances handle approximately two thirds of EMS tours in New York City ( see 2012/2013 Ann. Rep. of Fire Dept. of City of New York at 27, available at http:// www. nyc. gov/ html/ fdny/ pdf/ publications/ annual_ reports/ 2012_ annual_ report. pdf [accessed June 19, 2013] ).
Moreover, and unlike the types of medical providers identified by the concurrences, the EMTs employed by the New York City Fire Department (FDNY) and deployed via the 911 system receive training in basic life support techniques and their range of approved emergency services is limited by law ( seePublic Health Law § 3001 [defining the term “emergency medical technician”]; 10 NYCRR 800.6[c] [listing eight types of emergency medical services personnel]; 10 NYCRR 800.20[c][i] [describing the required curricula for various classes of first responders] ). Basic EMTs function in a “pre-hospital setting” and their activities are generally restricted to “CPR, oxygen administration, bleeding control, foreign body airway obstruction removal, and spinal immobilization.” Most EMTs (who are not specially certified as paramedics) are not authorized by law to administer medication, such as epinephrine, or perform invasive procedures, and do not have access to advanced diagnostic and medical treatment equipment or physician assistance ( see generally10 NYCRR 800.20[c][i][a]-[c] ), all of which are common in public and private hospital facilities. EMTs cannot be realistically compared to the proprietary medical professionals whose licensure requires extensive educational and training credentials, and who typically provide services at hospital or medical facilities rather than in the unpredictable community-at-large.
See Fire Dept. of City of New York, http:// www. nyc. gov/ html/ fdny/ html/ community/ emt_ medic_ faq. shtml (accessed June 19, 2013).
Public policy considerations support this analysis. The rationale underlying the government-function doctrine rests on several critical concerns: that the costs of tort recoveries would be excessively burdensome for taxpayers; the threat of liability could dissuade municipalities from maintaining emergency medical and ambulance services; and extensive exposure to liability could consequently render municipal governments less, not more, effective in protecting their citizens ( see Laratro, 8 N.Y.3d at 82, 828 N.Y.S.2d 280, 861 N.E.2d 95). This, in turn, would place the public at greater risk of danger, particularly in locales that are a considerable distance from private medical or hospital emergency care. Even a metropolis like New York City could feel a chilling effect when it considers the prospect of unknown liability exposure from the thousands of EMS runs its performs on a daily basis. It would be an unfortunate consequence if municipal emergency response systems were limited to mere transport service rather than emergency medical stabilization measures. We therefore decline to adopt a rule that has the potential to undermine this significant aspect of the government's 911 emergency response system.
During the 2012 fiscal year alone, there were approximately 1.4 million EMS apparatus responses in New York City—an average of approximately 3,800 per day—most of which were performed by municipal employees ( see 2012/2013 Ann. Rep. of Fire Dept. of City of New York at 26–27, available at http:// www. nyc. gov/ html/ fdny/ pdf/ publications/ annual_ reports/ 2012_ annual_ report. pdf [accessed June 19, 2013] ).
Hence, we hold that a municipal emergency response system—including the ambulance assistance rendered by first responders such as the FDNY EMTs in this case—should be viewed as “a classic governmental, rather than proprietary, function” ( Valdez, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356).
“ ‘(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’ ” ( Laratro, 8 N.Y.3d at 83, 828 N.Y.S.2d 280, 861 N.E.2d 95, quoting Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937  ).
A plaintiff must satisfy each of these factors in order to establish a special relationship. Here, the parties' dispute centers on the first and fourth elements. We agree with the Appellate Division that plaintiffs have adequately presented questions of fact on both of these factors.
Tiffany's mother recalled that once she realized the treatment provided by the EMTs would be limited to CPR, she “asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at that time.” The EMT apparently continued performing CPR and allegedly indicated that he was awaiting the arrival of ALS ambulance personnel. This poses a question of fact as to whether the EMTs, through their actions or promises, assumed an affirmative duty in deciding to have ALS paramedics undertake more sophisticated medical treatment rather than transporting the child to a hospital.
A factual resolution by a jury is also necessary to resolve the justifiable reliance element. It is possible that a fact finder could conclude that it was reasonable for Tiffany's mother to rely on the EMTs' alleged assurances rather than seek an alternative method for transporting Tiffany to the nearby hospital since the child's mother claims that she was not informed that it would take about 20 minutes for the ALS ambulance to arrive. Although it is true, as the City contends, that plaintiffs have not specifically identified any “ ‘other available avenues of protection’ ” to which the mother could have resorted ( Dinardo v. City of New York, 13 N.Y.3d 872, 874, 893 N.Y.S.2d 818, 921 N.E.2d 585 , quoting Cuffy, 69 N.Y.2d at 261, 513 N.Y.S.2d 372, 505 N.E.2d 937), the allegations raise the question of whether the EMTs may have “lulled” plaintiffs “into a false sense of security” ( Dinardo, 13 N.Y.3d at 874, 893 N.Y.S.2d 818, 921 N.E.2d 585 [internal quotation marks omitted] ). Plaintiffs are therefore entitled to show how the EMTs' statements or “conduct deprived [plaintiffs] of assistance that reasonably could have been expected from another source” ( Merced v. City of New York, 75 N.Y.2d 798, 800, 552 N.Y.S.2d 96, 551 N.E.2d 589  ). In this regard, plaintiffs have the ultimate burden of establishing that some other reasonable alternative was available ( see Valdez, 18 N.Y.3d at 75, 936 N.Y.S.2d 587, 960 N.E.2d 356).
In sum, because there are issues of fact associated with the eventual determination as to whether the City owed a special duty to plaintiffs, the City is not entitled to summary judgment dismissing the complaint against it.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. SMITH, J. (concurring).
I concur in the result, but not the reasoning, of the majority opinion. I am unable to find in this record evidence either of a promise (implicit or explicit) by the EMTs to do anything other than what they in fact did, or of any justifiable reliance by either plaintiff on such a promise. I would vote to dismiss the complaint if I thought, as the majority does, that the EMTs were performing a governmental function.
But the provision of medical care—including emergency medical care—is not something that only government does or can do. I think the label “proprietary” better suits the activity of the EMTs here, and thus I conclude that the doctrine of governmental immunity does not apply to this case.
The doctrine has always been limited to those functions that are unique to government. For example, we have held that, in the absence of a special duty, a suit cannot be based on negligence in providing police protection ( Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356  ); maintaining a registry of child care centers ( McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167  ); performing safety inspections of public vessels ( Metz v. State of New York, 20 N.Y.3d 175, 958 N.Y.S.2d 314, 982 N.E.2d 76  ); or issuing a death certificate ( Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184  ). Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit—for example, when the employee is negligent in driving a car ( Dooley v. State of New York, 254 App.Div. 381, 5 N.Y.S.2d 760 ,affd.280 N.Y. 748, 21 N.E.2d 518  ) or firing a gun ( Buckley v. City of New York, 56 N.Y.2d 300, 452 N.Y.S.2d 331, 437 N.E.2d 1088  ). There are difficult, borderline cases: when a public entity is sued for failing to protect from harm the occupants of a building that it owns, it may not be obvious whether it is acting as a landlord providing security—in which case it is held to the same standards as a private landlord ( Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493  )—or as a government deciding on the allocation of police resources—in which case it may claim immunity (Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 933 N.Y.S.2d 164, 957 N.E.2d 733  ).
It has long been accepted that the provision of medical care by a governmental entity falls on the “proprietary” side of the line, so that in such cases the doctrine of governmental immunity is inapplicable. There are many cases involving alleged medical malpractice in publicly-owned hospitals, in which the unavailability of immunity has apparently been assumed without discussion ( e.g. Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592, 695 N.Y.S.2d 39, 716 N.E.2d 1084 ;Matter of Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9, 377 N.E.2d 453 ;Matter of Murray v. City of New York, 30 N.Y.2d 113, 331 N.Y.S.2d 9, 282 N.E.2d 103 ;Schempp v. City of New York, 25 A.D.2d 649, 268 N.Y.S.2d 396 [1st Dept.1966], affd. 19 N.Y.2d 728, 279 N.Y.S.2d 183, 225 N.E.2d 888  ). In Schrempf v. State of New York, 66 N.Y.2d 289, 293–294, 496 N.Y.S.2d 973, 487 N.E.2d 883 (1985), we expressly held that the rule that “the State cannot be held liable for negligent failure to perform governmental activities ... has no application in cases where the State engages in a proprietary function ... such as providing medical and psychiatric care.” No exception has been made where the care is provided on an “emergency” basis ( see Murray, 30 N.Y.2d at 115, 331 N.Y.S.2d 9, 282 N.E.2d 103;Garcia v. New York City Health & Hosps. Corp., 299 A.D.2d 268, 269, 750 N.Y.S.2d 595 [1st Dept.2002] ).
Yet the majority today concludes that the emergency medical care provided by the City-employed EMTs in this case was a governmental function, because the EMTs arrived at plaintiffs' home in a City ambulance. The majority points out that in Laratro v. City of New York, 8 N.Y.3d 79, 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95 (2006) we listed “the duty to provide ... ambulance service” as among those that “the municipality owes to the general public,” and accordingly applied the governmental immunity doctrine (majority op. at 427, 972 N.Y.S.2d at 173–74, 995 N.E.2d at 135–36). But the service we were referring to in Laratro was the dispatching of an ambulance in response to a 911 call; the claim in Laratro, which we held barred by governmental immunity, was that a City-employed 911 operator was negligent in transmitting a request for emergency help. Answering a 911 call and seeing that help, where needed, is promptly sent is clearly a governmental function—so clearly that Laratro does not even discuss the governmental-proprietary distinction. The majority also relies on a number of out-of-state cases ( see majority op. at 428–429, 972 N.Y.S.2d at 174–75, 995 N.E.2d at 135–36), but many of those are more similar to Laratro than to this case; only one, Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 (Ct.App.2007), involved alleged negligence in providing emergency medical care after an ambulance arrived.
Where that is the allegation, I see no reason why immunity should be more available to a city than if city employees were providing similar care in the emergency room of a city hospital; or why a city should be immune for acts that could clearly be the basis of suit if the EMTs were employed by a private ambulance service responding to the same call. Of course it is true, as the majority says, that EMTs do not provide the broad range of medical care that would be available in a hospital or a doctor's office ( see majority op. at 429, 972 N.Y.S.2d at 174–75, 995 N.E.2d at 135–36); but why does that make one activity governmental and the other proprietary? The more important fact, I suggest, is that the services of ambulance-dispatched EMTs, like other forms of medical care, can be and often are furnished by private providers.
The majority emphasizes “public policy considerations” (majority op. at 430, 972 N.Y.S.2d at 175, 995 N.E.2d at 137), arguing essentially that tort liability will burden municipalities excessively, and dissuade them from offering life-saving services. I agree that this is a legitimate concern—but it seems to me to apply no less to the equally important services provided in municipal hospitals. In general, it may well be a bad idea, where no special duty is found, to subject municipalities to potentially huge liability in cases involving such catastrophic injuries as the one suffered by the child, plaintiff here. But it may be an even worse idea to exempt municipal agencies from that liability without also exempting their competitors in the private sector. If the burden is too heavy for the taxpayers to bear, why should the owner of a private ambulance service be asked to bear it? And if government is to be exempt from such liability when private providers are not, does that not invite the government to load excessive burdens on the private sector, without worrying about the consequences to itself?
I am not an uncritical admirer of our tort system, but I think it is best administered when public and private parties similarly situated are bound by the same rules. I therefore disagree with the favored treatment that the majority would accord to public entities that provide emergency medical care. ABDUS–SALAAM, J. (concurring).
This Court must balance the important public policy of insulating the government from tort liability for essential services it provides to the public, with the equally important principle that those who undertake to provide medical treatment must do so with reasonable care. While I agree that the Appellate Division properly reinstated the complaint against the City, I believe that the majority's rationale is incorrect. I would hold that the EMTs performed a proprietary function, and that there is a triable issue of fact concerning proximate cause.
As an initial matter, I differ with the majority's interpretation of the Appellate Division's decision. According to the majority, the Appellate Division held that the EMTs' actions were governmental in nature and that issues of fact existed as to whether the City had assumed a special duty to plaintiffs and had proximately caused their injuries ( see majority op. at 425, 972 N.Y.S.2d at 171–72, 995 N.E.2d at 133–34).
My reading of the decision is that the Appellate Division determined that the City “assumed a special duty toward th[ese] plaintiff[s]” (90 A.D.3d 501, 504, 934 N.Y.S.2d 164 [1st Dept.2011] ), and that no issues of fact remained as to this point. The court held that the EMTs' “assurances and advice” that it would be best to wait for the ALS ambulance rather than transport Tiffany to the hospital “constituted an assumption, through promises or actions, to act on behalf of infant plaintiff” ( id. [internal alterations and quotation marks omitted] ), and that “[t]he mother justifiably relied on the EMS technicians, who had taken control of the emergency situation, and who elected to await the arrival of the ALS ambulance” ( id. at 505, 934 N.Y.S.2d 164). There was no dispute between the parties as to whether the remaining two factors required for a special relationship were satisfied. Thus, the dispositive issue of fact discerned by the Appellate Division was with respect to proximate cause, not special relationship.
The Appellate Division did indicate that the mother's affidavit in opposition to a different motion made by another defendant, nurse Russo, might have raised an issue of fact because it did not specifically allege that the mother asked the EMTs to transport her daughter to the hospital. But the court found her affidavit “irrelevant” to the City's motion (90 A.D.3d at 505, 934 N.Y.S.2d 164).
I disagree with the majority's conclusion that municipal EMTs perform a governmental function. The provision of medical treatment, whether by an EMT or a doctor, either in an emergency or a non-emergency situation, simply is not a governmental function.
“[I]n light of the fact that the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury” (17 N.Y.3d at 447, 933 N.Y.S.2d 164, 957 N.E.2d 733).
I agree with plaintiffs and my concurring colleagues that the dispatch of the ambulance by the 911 operator was a governmental act ( see Laratro v. City of New York, 8 N.Y.3d 79, 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95 ;Sherpa v. New York City Health & Hosps. Corp., 90 A.D.3d 738, 740, 934 N.Y.S.2d 463 [2d Dept.2011] ), while the EMTs' care and treatment of Tiffany was proprietary ( see e.g. Schrempf v. State of New York, 66 N.Y.2d 289, 293–294, 496 N.Y.S.2d 973, 487 N.E.2d 883  [state mental hospital engaged in proprietary function by treating and releasing patient]; Kowal v. Deer Park Fire Dist., 13 A.D.3d 489, 491, 787 N.Y.S.2d 352 [2d Dept.2004] [“misfeasance with respect to medical treatment ... is not a governmental function” and special relationship not applicable where fire department ambulance crew member “undertook the duty to treat the decedent”]; Fonville v. New York City Health & Hosps. Corp., 300 A.D.2d 623, 624, 754 N.Y.S.2d 295 [2d Dept.2002] [claim that EMT rendered improper treatment reinstated, even absent a showing of special duty, because EMT had duty, to perform with due care] ). That the City's emergency medical services are assigned to the fire department does not mean, as suggested by the majority, that the entire EMS operation, including medical treatment, is a governmental function.
Nor does our decision in Laratro mandate that the entire EMS operation be considered a governmental function. In Laratro, we determined that, absent a special relationship, the City could not be held liable for the alleged negligence of a 911 operator because the dispatch of ambulances in response to 911 calls is a governmental function ( see8 N.Y.3d at 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95). This case does not involve a 911 operator's delay in responding to an emergency call; rather, it concerns the allegedly negligent medical care and treatment rendered by the EMTs once they arrived at plaintiffs' home. Thus, as plaintiffs and my concurring colleagues point out, Laratro does not necessarily extend to, or control the outcome, in this case.
It is beyond dispute that in New York, government hospitals are subject to liability for negligent medical treatment without any required showing by a plaintiff of a special relationship ( see e.g. Schrempf, 66 N.Y.2d at 293–294, 496 N.Y.S.2d 973, 487 N.E.2d 883; Sukhraj v. New York City Health & Hosps. Corp., 106 A.D.3d 809, 965 N.Y.S.2d 532 [2d Dept. 2013] ). By grouping the provision of medical treatment by EMTs with the actions of “other first responders” (majority op. at 428, 972 N.Y.S.2d at 174, 995 N.E.2d at 136), the majority misses the point that unlike fire and police protection—services not traditionally provided by the private sector—the private sector has long been involved in the provision of ambulance and emergency medical services ( cf. Sebastian v. State of New York, 93 N.Y.2d 790, 795, 698 N.Y.S.2d 601, 720 N.E.2d 878  [patient's placement and escape from a facility for juvenile delinquents “derives from State activities that are distinctly governmental and have no private sector counterpart”] ). In fact, roughly 35% of all 911 ambulance tours in New York City are operated by private ambulances. Those who undertake to provide medical treatment must exercise reasonable care—regardless of whether the caregiver is a doctor, nurse, or EMT, or whether the care occurs in a “pre-hospital setting” (majority op. at 429, 972 N.Y.S.2d at 175, 995 N.E.2d at 137) or a hospital setting—and this duty should not be circumscribed by the constraints of governmental immunity.
In this regard, the majority's citation to Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747 (1989), a decision by the Supreme Court of Virginia, is inapposite. The Virginia court has held, in contrast to New York jurisprudence, that “hospital services provided by a city [are] an exercise of a governmental function” ( Edwards, 237 Va. at 171, 375 S.E.2d at 749, citing City of Richmond v. Long, 58 Va. [17 Gratt.] 375  ). Similarly, many of the other out-of-state cases cited by the majority, which address a municipality's general authority to operate a public ambulance system ( see Ayala v. City of Corpus Christi, 507 S.W.2d 324, 328 [Tx.Civ.App.1974] ) and its potential liability for the negligent actions of 911 dispatchers ( see Ross v. Consumers Power Co., 420 Mich. 567, 654, 363 N.W.2d 641, 677 ;Wanzer v. District of Columbia, 580 A.2d 127, 131 [D.C.Ct.App.1990] ), ambulance drivers ( see King v. Williams, 5 Ohio St.3d 137, 140, 449 N.E.2d 452, 455 ;McIver v. Smith, 134 N.C.App. 583, 587, 518 S.E.2d 522, 525 [Ct.App.1999]; Smith v. City of Lexington, 307 S.W.2d 568, 569–570 [Ky.Ct.App.1957] ), and operators of police vehicles ( see Thornton v. State, 233 Kan. 737, 742, 666 P.2d 655, 659  ), do not support the conclusion that the provision of medical care by EMTs must be classified as a governmental function.
Hearing on the Fiscal Year 2013 Executive Budget, Finance Division Briefing Paper, Fire Department, June 1, 2012 at 5, available at http:// council. nyc. gov/ downloads/ pdf/ budget/ 2013/ execbudget/ 057% 20Fire% 20Department.pdf (last visited June 19, 2013).
I share the concerns of my colleagues that tort liability for negligent treatment rendered by municipal EMTs and other medical personnel will burden the public fisc and possibly dissuade municipalities from continuing to provide emergency medical treatment in connection with their ambulance services. However, I do not believe this concern should cause us to employ a strained legal analysis in order to reach a desired result.
In the majority's view, defining medical treatment by EMTs as a governmental function, and requiring plaintiffs to demonstrate that a special duty exists, advances public policy by limiting the exposure of municipalities to excessive tort recoveries. This decision will not achieve the majority's goal. It will be the rare case where an injured party, having been assessed and treated by an EMT, will not be able to demonstrate the four elements of a special relationship: (1) assumption by the EMT of an affirmative duty to act on behalf of the injured party, (2) knowledge by the EMT that inaction could lead to harm, (3) some form of direct contact between the EMT and the injured party, and (4) that party's justifiable reliance on the EMT's affirmative undertaking ( see Mastroianni v. County of Suffolk, 91 N.Y.2d 198, 204, 668 N.Y.S.2d 542, 691 N.E.2d 613 ;Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937  ). Thus, even in special duty cases, municipalities will likely be exposed to liability.
In that regard, unlike my concurring colleagues who find no record evidence of a special relationship, I think the facts of this case demonstrate that the EMTs assumed a special duty toward plaintiffs ( see90 A.D.3d at 504, 934 N.Y.S.2d 164). Merely by undertaking to treat Tiffany, the EMTs assumed an affirmative duty to act on her behalf ( see Cuffy, 69 N.Y.2d at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [a municipality assumes an affirmative duty to act “through promises or actions”] ) and plaintiffs justifiably relied on the EMTs “who had taken control of the emergency situation” (90 A.D.3d at 505, 934 N.Y.S.2d 164). Even if I could agree with the majority that the EMTs were performing a governmental function, I would nonetheless conclude that there is no triable issue regarding a special relationship between plaintiffs and the EMTs. Chief Judge LIPPMAN and Judges READ and RIVERA concur with Judge GRAFFEO; Judge SMITH concurs in result in an opinion in which Judge PIGOTT concurs; Judge ABDUS–SALAAM concurs in result in a separate opinion.
Order affirmed, with costs, and certified question answered in the affirmative.