This involves the neighborhood I grew up in, and where my parents still live. Its a small exurb of NYC. The development my parents live in is about 200 houses at the base of a steep hill. In the past 5 ~ 10 years, there has been extensive development at the top of the hill: destroying acres of forest and cutting into the steep hillside for more housing.

The result has been increased flooding to the houses at the base of the development. In discussions with my parents, I know that most or all of the houses near my parents have had french drains and/or sump pumps installed. Many have had to do extensive renovations due to new flooding.

For it's part, the town has attempted to install storm drains on some properties, and in select locations on the road at the base of the hill. However, reports from neighbors, and a simple walk around the block, reveals shoddy work. In some cases, the storm drains are 5 inches above ground level, negating any water management benefits.

I know my parents and all of their immediate neighbors have spent thousands of dollars on storm damage repair, water proofing, landscaping, and more, as a result of the new flooding. It would be extremely difficult for anyone to sell, as many yards, my parents included, now have a near-permanent water feature on their property.

The increase in flooding could easily be proven with documentation of repairs done over time, and it corresponds pretty directly to deforestation done at the top of the hill. More recent documentation has been via Facebook, as neighbors have gotten together to share stories.

Does the town have any responsibility towards the direct and indirect damage done to these properties? What can be done to hold the town responsible for potentially lost property value, and direct property damage?

2 Answers 2


Does the town have any responsibility towards the direct and indirect damage done to these properties? What can be done to hold the town responsible for potentially lost property value, and direct property damage?

Most claims are barred by some sort of governmental immunity and also face strict procedural hurdles, but it isn't impossible that the defectively installed storm drains could give rise to some liability for property damage if the suit were brought swiftly in the proper manner.

Also, even if there is liability this will almost certainly not extend to lost property value, only to direct property damage, because while the direct property damage might be caused by something that the government has waived sovereign immunity for, the lost property value is almost entirely due to its discretionary regulatory decisions about land use and whether it should provide storm drainage at all.

There are several potential theories of municipal liability that need to be considered.

One is that the township has liability because it approved development that foreseeably caused this problem. This claim is probably without merit although there might be a claim against the homeowners who inadequately drained their properties in a way that impacted their neighbors. This is because land use regulation is a discretionary governmental action.

A second is that the township has liability because it had a duty to an individual property own to provide adequate storm drainage and failed to do so. This claim is probably also without merit. This is also a discretionary governmental action and even if it was not, would not meet New York State's "special relationship" test set forth below.

A third theory is that the township has liability because once it undertook to install storm drains the workmanship of the storm drains that it installed fell below the standard of reasonable care in workmanship that applies to all construction work that foreseeable causes injuries to persons or property. This is a much closer call and might prevail, although it would still be subject to the strict procedural limitations of the New York Court of Claims Act including a 90 day statute of limitations under Section 10(3) of the Act and a notice requirement. There would also be no right to a jury trial in the case.

Once the storm drain is actually built, there is arguably a non-discretionary duty to build it in a workman-like manner and the location of the particular defective drain may trigger New York's "special relationship" test.

Also, it might be possible to sue the private contractor that defectively installed the storm drain for the township.

As explained in a July 8, 2014 article written by a lawyer in the New York City law department which is more or less identical in its sovereign immunity status to a New York State township:

When municipalities are sued in tort, two of the most powerful bars to recovery are the public duty principle and the governmental function immunity defense. When these two principles are applicable, the City will not be made to pay compensation even if a City employee had been negligent and caused an injury. . . . An injured person alleging an injury caused by the City’s failure to perform a public duty cannot recover unless the injured person alleges and establishes, as an element of his or her claim, a special relationship by which the City assumed a specific duty with respect to the injured person. . . . the plaintiff, to present a prima facie case for recovery, must first successfully establish a special duty. If the plaintiff cannot get past the special duty hurdle, there is no need for the court to address the applicability of the governmental function immunity defense, which provides absolute immunity for discretionary determinations where discretion has been exercised.

The often-repeated policy reason for limiting governmental tort liability is that government would not be financially viable if it were made the insurer of the safety of the public for injuries caused principally by third parties. Governmental entities could have a disincentive from providing important governmental services if they knew that doing so could seriously jeopardize the public treasury. The courts do not limit recovery, however, when a municipality acts in a proprietary capacity — when its activities essentially substituted for or supplemented those undertaken by a private enterprise, such as property ownership, operation of a motor vehicle, or providing hospital services.

When a municipality acted in its governmental capacity, sovereign immunity historically protected the municipality against tort recovery by injured persons. That absolute protection against tort recovery lasted in New York until the State Legislature, in 1929, waived New York State’s sovereign immunity as part of the Court of Claims Act. Although the waiver by the State Legislature only mentioned the State of New York, the Court of Appeals in 1945, in Bernardine v. City of New York, 294 N.Y. 361 (1945), interpreted the waiver to apply as well to municipal entities like New York City. But as the Court of Appeals subsequently held, the waiver did not eliminate all governmental immunities or other bars to governmental liability.

In the years since 1945, courts wrestled with sorting out when liability was appropriate and when it was not. For example, courts generally refused to hold municipal governments liable for failing to prevent fires or crime. Municipal governments undertake all sorts of public duties like police protection, fire protection, child protection, education, building inspections, and the like. Were a municipality liable every time a crime was committed that governmental actors had failed to prevent, or an inspector made a mistake, or a student was not sufficiently educated, it would be under a crushing financial burden that could result in bankruptcy. At the same time, courts created exceptions that allowed negligence claims to proceed even where municipalities performed quintessential governmental functions. Special duty was one such exception. Another exception allowed for liability where the governmental action was ministerial rather than discretionary. . . .

In October 2011 the Court of Appeals [*ed. the highest court in the state of New York called a state supreme court in most other states] in Valdez v. City, 18 N.Y.3d 69 (2011) clarified 70 years of jurisprudence and articulated an analysis to be applied when considering whether an individual may sue a municipal government for negligent performance of, or failure to perform, governmental functions. The decision in Valdez must now be the starting point in analyzing liability in any negligence tort suit against the government or governmental actors.

First, the Court of Appeals confirmed the basic tenet that although sovereign immunity was waived in the Court of Claims Act, tort liability will generally not attach to governmental entities or government employees performing governmental functions, regardless of whether the function is discretionary or ministerial. Where statutory or regulatory mandates require a government to act for the benefit of the public as a whole, the government and its actors cannot be sued for failing to provide or negligently providing such services. The Court articulated this principle as the “public duty” rule, not as “immunity.”

In order to overcome the public duty bar, an individual as a threshold issue must show that there existed a special duty running in favor of the claimant as an individual. The Valdez Court held that for a litigant to proceed successfully with a tort suit against a municipality, a plaintiff must first plead a “special duty” running specifically to him or her. A special duty can be formed when a municipality or its employee:

• violates a statutory duty enacted for the benefit of a particular class of persons; • assumes positive direction and control in the face of a known, blatant, and dangerous safety violation; or • voluntarily assumes a duty that generated justifiable reliance by the person through the employee’s actions or promises to the person.

The Valdez Court also held that whether the facts are legally sufficient to establish a special duty is an objective question of law for the court.

The Court of Appeals made clear, therefore, that special duty is neither an exception to immunity nor a defense, but instead is an initial and essential element of any tort claim against the government and governmental actors. The Court of Appeals also made clear that, even if a plaintiff succeeds in articulating a viable special duty, tort liability may still be barred by the “governmental function immunity defense.” Valdez, 18 N.Y.3d at 75-76. That defense shields governmental entities from liability for discretionary actions taken during the performance of governmental functions. This discretionary defense is qualified in that the municipality must establish that the governmental action related to the incident was both a discretionary one and that discretion was, in fact, exercised.

A government employee’s failure to perform a ministerial action, on the other hand, may subject the government to liability if a special duty has been established.

In late 2012 and mid-2013, the Court of Appeals issued two additional opinions which reconfirmed Valdez’s analysis of when the government may be sued in tort. In Metz v. State, 20 N.Y.3d 175 (2012), twenty people were killed and many others injured when a tour boat on Lake George capsized. Plaintiffs claimed that State inspectors had negligently inspected the vessel and had failed to exercise any discretion in fixing the number of passengers who could safely travel on the tour boat. They argued, therefore, that the State was not entitled to immunity for their actions.

The Appellate Division, Third Department, ruled that the inspection function was governmental and found that plaintiffs had failed to establish a special duty. However, the Third Department went on to find a viable claim against the State because the State could not demonstrate that it exercised discretion in certifying the vessel as seaworthy. The Court of Appeals reversed and rejected the Third Department’s analysis. The Court, relying on Valdez, ruled that, since inspections are a governmental function, the Appellate Division’s analysis should have ended with the finding that plaintiffs had not established a special duty. Insofar as the plaintiffs did not and could not articulate a special duty, no liability could be imposed against the State and the nature of the governmental conduct – discretionary or ministerial – was not relevant. There was no reason to address the immunity defense since the plaintiff had not established the initial requirement of a special duty.

In Applewhite v. City, 21 N.Y.3d 420 (2013), plaintiff, a 12-year-old child living at home and cared for by a private nurse, went into cardiac arrest after being administered certain medications. The plaintiff’s mother called 911 and an ambulance arrived within minutes. The plaintiff child and mother sued the nurse and the City, claiming that the child suffered severe brain damage as a result of negligent treatment at the scene. Plaintiffs argued that, although maintaining the 911 system and ambulance services are governmental functions, once the EMTs cross the threshold and tend to the patient, the function becomes a proprietary one. The City responded that the function continues as a governmental one and that no special duty was created.

The Court of Appeals agreed with the City’s argument that the emergency rescue function is a governmental police protection function both before and after the emergency medical personnel arrived. Because these were governmental and public duties, the plaintiffs needed to articulate a special duty in order to state a viable tort claim. The Court then ruled that there existed a question of fact as to whether the City assumed a special duty under the unique circumstances of the case and remanded the case for trial.

For litigants against the City, step one in developing a claim is to distinguish the City’s proprietary activities from the governmental. If proprietary, then there generally is no issue of a public duty bar and the claim may proceed.

If the activity is governmental, however, the public duty bar must first be overcome. As an element of the plaintiff’s claim, the plaintiff must allege and establish the existence of a special duty. Assuming a plaintiff successfully overcomes the special duty hurdle, the government will still not be liable if the challenged conduct was discretionary and it exercised discretion. If plaintiff overcomes the public duty principle and the immunity bar, the plaintiff’s tort claim may then proceed.

  • Thanks and how is it not clear that in the situation described, the city's actions were more proprietary than governmental? Aug 29, 2022 at 22:29

Of course the town has responsibility for any damage caused by its actions unless, for instance, special circumstances invoked some kind of emergency powers. Did they?

You seem to be drowning your own case in detail and even so many months ago, how could you have got as far as the Question without consulting lawyers?

Failing that, what township has any different standing in law than any individual, or any commercial organisation?

Most obviously, what can be done to hold the town responsible for anything is first to suggest that you're prepared to file charges in court, and if that fails to produce a satisfactory response then go ahead and file the charges.

I see the Question as the wrong way round; anyone who damages property will be at fault unless there is a lawful excuse… which in this case would presumably be not simply "we are the township" but rather, the specific details of rights and protections granted to the township, possibly in its constitution.

It might greatly matter to what extent any of the damages detailed in the exposition can be shown, but that's a wholly different thing.

  • 2
    "Failing that, what township has any different standing in law than any individual, or any commercial organisation?" The big difference is sovereign immunity; the government can't be sued at all without its consent, except in certain specific situations. A local government like a township may not have the full benefit of this, but there is likely to be some form of it in play. Aug 24, 2022 at 17:41
  • Uh… what? Sovereign immunity did apply here in the UK until about 1977, when all levels of local and central government dropped the idea. If your jurisdiction still claims sovereign immunity there can never have been even one court case brought against your state. Is that the case? When a local government, like a township, may not have the full benefit of that, what form do suggest might be in play? Aug 24, 2022 at 17:58
  • 3
    @RobbieGoodwin All U.S. state and local governments have sovereign immunity as the default rule subject to express waivers of sovereign immunity, usually expressly set forth by statute but sometimes implied in law or required by federal law, for specific causes of action. This answer is basically completely wrong in its analysis.
    – ohwilleke
    Aug 24, 2022 at 18:34
  • 1
    @RobbieGoodwin This isn't how sovereign immunity works. Sovereign immunity bars claims that aren't waived. It doesn't allow suits in cases where there is no waiver. It does when there is a statutory waiver of some claims (as there is in New York State), but only of the waived claims in a manner consistent with the waiver.
    – ohwilleke
    Aug 24, 2022 at 19:06
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    @RobbieGoodwin See my answer which explains it at length with legal authority references. Basically in a waiver of governmental immunity, the government says you can't sue me unless you do X, Y and Z and are suing on theory A, B or C. If you meet those conditions you can sue, if you don't you can't and a court will dismiss your case.
    – ohwilleke
    Aug 24, 2022 at 19:22

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