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Question:
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Hi Ken
Our informal industry group is discussing the the liability, if any, that is taken on by any municipality ( in Massachusetts) that charges for monitoring services. Can you enlighten us? We are under the impression that any city's liability is severly limited in normal circumstances.
( Example, City X charges $280 per year for radio monitoring of a private commercial fire alarm location)
Paul Silva
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Answer:
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In anticipation of someone from Marlboro NJ hiring me to sue the cops when there is a successful burglary or fire I decided to have my office do research and come up with a more formal opinion. Only partly kidding about suing Marlboro cops - I'll wait for the opportunity here in NY where we also have a few municipalities who think the alarm monitoring business is a good way to make money. Anyway, you in the alarm business will be happy to know that the municipality will be exposed same as you are if they are negligent. Well, not quite like you are, because you are smart enough to use my Standard Alarm Contracts, and I haven't sold a single one to a municipality.
Here is our research [sorry it's New York research- but I think it will apply every where else]
Issue: If a municipality goes into business and contracts with private actors (alarm monitoring contracts), will the municipality be able to claim sovereign immunity when being sued for alleged misconduct that is related to the alarm contracts?
Answer: NO, when a municipality acts in a proprietary function and not a purely governmental function, as is the case here when the municipality is contracting with individuals to monitor alarm systems for a set fee, the municipality extinguishes its right to claim sovereign immunity.
Special Relationship Exception - Delong v. Erie County, 60 N.Y.2d 296 (1983) - NY Court of Appeals case held that when municipality created 911 response system, the operator’s assurance that police cars were on the way to respond to the burglary created a “special relationship” such that municipality was liable (and could not claim sovereign immunity) when police cars were negligently sent to the wrong address.
Note that the “special relationship” exception focuses more on communications between the victim and the police/municipality as it relates to assurances the police gave that police will arrive shortly, which was relied on to the detriment of the victim, causing damages. More applicable here would be the Proprietary Exception to Sovereign Immunity.
Proprietary Exception -
American Jurisprudence, Second Edition, Municipal, County, & State Court Liability, § 47 (cite - 57 Am. Jur. 2d Municipal, etc., Tort Liability § 47):
A common test for the applicability of governmental tort immunity is whether the act or function giving rise to potential liability can be characterized as governmental or proprietary in nature. See City of Hamilton v. Public Water Supply Dist. No. 2 of Caldwell Cty, 849 S.W.2d 96 (Mo.Ct.App.W.D. 1993) (holding that when municipality is acting in a proprietary manner as a private enterprise, it can be held liable for acts which would otherwise be protected by sovereign immunity).
Immunity is retained for governmental or public acts or functions, but liability may apply if the act or function is deemed merely proprietary or private in nature. See Abrams v. City of Rockville, 88 Md.App. 588, 596 (1991).
Further, it has been held that a government can act in a proprietary capacity when engaging in business with primarily private concerns, even if some elements are governmental. See Elkhart Lake, Inc. v. Village of Elkhart Lake, 181 Wis.2d 778 (Ct. App. 1993).
Government as Landlord - “Generally, a public entity is immune from negligence claims arising out of the performance of its governmental functions ... where, however, a public entity acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord ...” Johnson v. NYC Bd. of Ed., 177 Misc.2d 310, 312 (1998); Preston v. State of NY, 59 N.Y.2d 997, 998 (1983); Bonner v. City of NY., 73 N.Y.2d 930, 932 (1989).
Municipality as Private Actor - Twitchell v. Town of Pittsford, 106 A.D.2d 903 (Sup. Ct. Monroe Cty. 1986), affd 66 N.Y.2d 824 (finding Town liable for negligently maintaining an ice rink in a slip and fall case, based upon a contract between the School District and Town whereby town agreed to operate an ice rink on School District’s property).