On “Technicalities” and “Loopholes”

The words “technicality” and “loophole” are frequently used to describe certain legal developments or results that, for one reason or another, don’t “seem” right. Unfortunately, they are often used irresponsibly and in a way that perpetuates both ignorance of the law and unfair stereotypes of lawyers as sleazy manipulators.

Take, for example, the New York Supreme Court’s recent decision in Pascal v. City of New York.  There, plaintiff alleged that the decedent (plaintiff’s sister Kathleen Thomas) died while waiting for an ambulance to come to her aid after she slipped on ice and suffered a cardiac arrest. The court dismissed plaintiff’s case, finding that since the ambulance was called by decedent’s boyfriend, rather than an “immediate family member,” plaintiff could not establish the requisite “special relationship” necessary to hold the municipality liable.

A recent New York Post article says this result is based on a “sleazy legal loophole” and a “technicality”.

At first blush, and without knowing more, the court’s decision doesn’t seem right, does it? After all, why should it matter who calls for an ambulance?  In addition, the result may have been different if the decedent and her boyfriend of many years had simply gone down to City Hall, paid the nominal filing fee, and gotten legally married.  It could therefore be argued that the “immediate family member” rule is arbitrary and hence unfair.

It turns out, however, that the result here is based on well-settled legal principles. If you’re interested, here’s the law:

The duty of providing emergency ambulance service is a general duty owed by the municipality to the general public. … In order to challenge the performance of a municipal duty a plaintiff must fall into a narrow exception to the general rule of nonliability where the injured person had a “special relationship” with representatives of the municipality. … The Court of Appeals in Cuffy v. City of New York, 69 NY2d 255, 260 (1987)[] held that the special relationship elements 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.

The court held that plaintiff failed to satisfy the third and fourth elements of the Cuffy test.

Since plaintiff was unconscious when the 911 call was made on her behalf, she did not have direct contact with the 911 operator. Furthermore, plaintiff could not “impute direct contact and reliance through the actions of” the decedent’s long-term boyfriend.

The court cited the Court of Appeals’ 2006 decision of Laratro v. City of New York for the rule that “the only circumstance where another party’s direct contact and reliance may be imputed to the injured person is in the case of an immediate family member.” Therefore, since “plaintiff cannot satisfy the Cuffy elements of a special relationship [her] claim against the municipality and its employees must fail.”

In a strict sense, to say that this result is based on a “technicality” is correct, since the law is often complex and, well, technical.

But to characterize years of Court of Appeals precedent – the source of the “immediate family member” requirement – as a “sleazy legal loophole” is disingenuous and misleading.

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