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The special relationship exception and liability

The presence of officers at a scene where two EMS workers interacted with a patient who subsequently died necessitates a discussion about the special relationship exception to municipal liability


The December 18, 2022, police bodycam video of two Illinois EMS workers interacting with a patient who subsequently died provided preliminary evidentiary support for criminal charges filed against them.

While they will have their day in court and be entitled to all procedural rights and protections provided by law, it is not prejudicial to their case or their rights to acknowledge the unprofessionalism of their conduct. Whether that conduct rises to the level of culpable criminality will be the ultimate province of a jury, should the case go that far.

Since there were other public safety professionals at the scene – police officers – their presence necessitates a discussion about the special relationship exception to municipal liability. This discussion in no way insinuates anything negative toward the officers nor makes any statement regarding their behavior. The bodycam video merely provides a teachable moment to provide a modicum of legal awareness.

There is no general duty of protection owed to the public by the police. Thus, if someone is the victim of a crime, such as a robbery, and asserts the crime would not have occurred if there was a greater police presence, there can be no liability for failure to provide general police protection. However, if an individual relies to their detriment on an affirmative undertaking on their behalf by the police there can be liability. This is known as the “special relationship exception” and generally applies when four factors are met:

  1. An affirmative duty assumed by the municipality, through promises or actions, to act on behalf of the party who was injured;
  2. Knowledge on behalf of the municipality’s agents that inaction could lead to harm;
  3. Some form of direct contact between the municipality’s agents and the party; and
  4. That party’s justifiable reliance on the municipality’s affirmative undertaking.

If these four criteria are met and there is a resulting injury to a party, liability will be imputed to the municipality and its agents, who in these situations are most likely the police.

The criteria outlined above is the civil liability standard in New York, as stated in Cuffy v. City of New York, but there are similar standards in other states. Negligence claims arise when there is a duty to act, a breach of that duty that leads to harm, and the breach of duty is the proximate cause of the harm. For there to be a constitutional violation in such a situation the U.S. Supreme Court has stated that:

“it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf – through incarceration, institutionalization, or other similar restraint of personal liberty – which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” — DeShaney v. Winnebago County, 489 U.S. 189, 200 (1989).

However, claims of constitutional tort based on a violation of due process require more than mere negligence for a government official to be liable, there must be action or inaction showing a minimal level of deliberate indifference.

Generally, the federal cases have centered on questions of custody: When and to what extent has someone who suffered an injury been in police custody to the point that a special relationship was created? Claims for due process violations have not been successful without a plaintiff checking off all the boxes leading to a legal determination that a special relationship existed. State tort law claims for negligence provide a clearer and more fertile path for liability claims: duty, breach, causation and harm.

Duty is the key word and one that every officer viewing that December 2022 video should consider:

  • What is the duty owed to an involved party when on a call, whether it be a medical emergency, domestic dispute, or intoxicated subject?
  • Have you left that individual in no different situation or a worse situation than prior to your arrival?
  • Have you undertaken an affirmative duty upon which the individual will now rely on?

Police know from day one in the academy to be able and ready to account for their actions. Being a bystander will not absolve liability. When the law imposes a duty there is the responsibility to act.

What if we were to change the factual scenario of the Illinois incident and the responding EMS workers decided to leave the individual in his apartment after he rolled on his stomach and lay flat against the floor – where would that leave them if he later died of asphyxia? In the same predicament.

Under state criminal laws, a failure to act when there is a duty to act – a crime of omission – is a culpable “actus reus.” If such a scenario were to happen and the police were present there is no doubt officers would not just stand by, they would do something, even if it were to call for another ambulance. But what if they were to walk out with the initial responding EMS crew after relying on EMS statements that the individual was fine and it would be best if he was left to sleep it off? The answer should be clear. Your career may depend upon it.

Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability, disciplinary cases, critical incidents, and employment matters. He is the author of “Homeland Security Law: Issues and Analysis,” Cognella Publishing (2024).