

Central NY Injury Lawyer Asked to Write Brief for Important “Breonna Taylor” Type Case in New York

A few weeks ago, Breonna Taylor’s family received $12 million in settlement for their wrongful death case against the City of Louisville, Kentucky and its police department for their botched “no-knock” warrant raid in which Ms. Taylor was killed. When news broke about that settlement, I asked myself, “would she have gotten such a settlement in New York State”?  My answer was “no”.  That’s because New York’s highest court, the Court of Appeals, has, in the last decade or so, narrowed and toughened a rule of law called the “public duty” rule, also called the “special duty” or “special relationship” rule.  Under the recent version of this rule, no one injured by the negligence of a governmental entity (such as a city or its police) can sue for money damages unless the victim can show that the blameworthy officials had a “special duty” toward him or her.  In cases like Breonna Taylor’s, that means that in New York her family would have to show that the police had some kind of verbal communication with Breonna, before she was shot, that made her feel she was safe or protected from harm.

But Breonna Taylor had absolutely no communications at all with the police before they burst open the door in the apartment where she was staying and shot her.  Thus, under New York law, the police did not have a “special duty” toward her.  It is very possible that a New York Court would thus have felt compelled to throw her case out based on lack of “special duty”.

In fact, this is exactly what happened in the recent New York case of Ferreira v. City of BinghamtonThe facts in that case were, in all relevant ways, exactly the same as in the Taylor case.  Jesus Ferreira was staying in a friend’s apartment when a SWAT team burst in with a “no-knock” warrant.  The lead officer wasted no time in firing bullets into the unarmed Ferreira.  Ferreira had done nothing wrong. Fortunately, unlike Taylor, Ferreira did not die.

But he sued.

Even though the federal-court jury awarded Ferreira $3 million, the trial judge later threw the case out, holding that Ferreira had not proven a “special duty”.

The case then went up on appeal to the Second Circuit Court of Appeals, who has now referred the following question to New York’s highest Court to decide: Does the “special duty” requirement apply in all cases where a governmental actor such as a police officer negligently causes personal injury or death, including where the governmental actor directly inflicts harm (such as by firing bullets into the victim) or does the special duty rule apply only where the government or police negligently failed to protect the victim from an injury inflicted by others (e.g., a police officer fails to stop someone else from firing bullets into the victim).

Older New York cases did not require a “special duty” when the government or police officer directly caused the harm, but only where they failed to protect the victim from harm from others.  But recent pronouncements from the Court of Appeals suggest that a special duty is always required, even where the government or the police directly cause the harm.

I am proud to say that the New York State Academy of Trial Lawyers has chosen me to write the amicus curiae (“friend of the court”) brief to help secure a victory for Mr. Ferreira.  An amicus brief is written and presented not by any of the parties, but by someone with a strong interest in the outcome of a lawsuit.  The New York Academy of Trial Lawyers has a special interest in the outcome because it consists largely of members, like me, who represent injured victims seeking compensation for injuries caused by others’ negligence.   If the Academy – through my Brief – helps convince the Court to eliminate the need to prove “special duty” in situations like those Breonna Taylor and Jesus Ferreira faced, we will go a long way in bringing justice not just to Mr. Ferreira, but to many other victims of government and police wrongdoing.

Wish me luck!

Keep safe!

Mike Bersani


Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

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