Peters v. City of New York11/23/2004
v County of Suffolk, 228 AD2d 411, 412 ).
Thus, since, here, the alleged negligence of the City and the NYCHHC charged by Peters and Cowan was in their performance of traffic regulation to secure the accident scene, including the EMS workers' placement of road flares, the City and the NYCHHC were engaged in a governmental function, requiring plaintiffs to establish the existence of a special relationship between them and the City or the NYCHHC (see Balsam, 90 NY2d at 968; Eckert, 3 AD3d at 471; DiFlorio, 303 AD2d at 924; Respass, 288 AD2d at 287; Gonzalez, 228 AD2d at 411-412). The elements of this special relationship which must be established are: "(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" (Cuffy, 69 NY2d at 260; see also Isaksson v Rulffes, 135 AD2d 611, 613 ).
Peters argues that a special relationship between him and the City and the NYCHHC existed because the EMS workers had stopped and started to render aid to him. Such argument is without merit. Peters' claims do not arise out of the EMS workers' medical treatment of him (compare Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 ), but in their control of traffic, which, as noted above, is a governmental function (see Balsam, 90 NY2d at 968; Eckert, 3 AD3d at 470; DiFlorio, 303 AD2d at 924; Respass, 288 AD2d at 412). Furthermore, Peters was not placed in a more dangerous position by the EMS workers' stopping at the scene and placing of flares than he would have been if the ambulance had failed to stop and place any flares at the scene. Moreover, Cowan, as a pedestrian, and Peters, who had no direct contact with the City or the NYCHHC prior to his accident, cannot show that they justifiably relied upon a promise by the City or the NYCHHC and that their reliance was causally connected to the harm they suffered, as is required in order to establish the existence of a special relationship between them and the City and the NYCHHC (see Respass, 288 AD2d at 287; Gonzalez, 228 AD2d at 412; Isaksson, 135 AD2d at 613).
Additionally, no special duty or special relationship can arise from any alleged violation by the EMS workers of the guidelines for the operation of EMS vehicles set forth by the operating guide. The operation guidelines were intended to benefit injured persons, but only "in the broad sense of protecting all members of the general public similarly situated"(Isaksson, 135 AD2d at 613). This is insufficient to form a basis for municipal liability (see O'Connor v City of New York, 58 NY2d 184, 189-190; Isaksson, 135 AD2d at 613).
Contrary to the contention by Peters and Cowan that the guidelines in the operating guide of the New York City EMS are mandatory requirements that must be strictly followed by the EMS workers, the operating guide only states that its purpose is " o set forth policy and guidelines for the operation of EMS vehicles." Indeed, Scullion specifically testified at his deposition that the ambulance crew has discretion with regard to the placement of flares at accident scenes, and that the "practicality" of the situation determines the placement of the flares.
As pointed out by the City and the NYCHHC, EMS workers, in handling an emergency situation, are required to make quick decisions, similar to those made by police officers or firefighters when approaching an accident location, i.e., how to control
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