County Not Liable to Decedent for Legal Advice Given to Board

In Pearce v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist., 2017 NY Slip Op 06793, the plaintiff sought damages for the death of her son as the result of a drowning accident in the vicinity of a dam on Buffalo Creek in the Town of West Seneca. The plaintiff sued both the Town of West Seneca and Erie County, as well as the Joint Board of Directors of the Erie-Wyoming County Soil Conservation District.

The Board had previously planned to install signs warning that the dam area was hazardous, but the County, which provides legal services to the Board pursuant to Soil and Water Conservation Districts Law § 9 (13), advised the Board not to install warning signs.

The plaintiff alleged that the County was negligent in “improperly advising” the Board not to install the signs, and that the County “was further negligent in an ultra vires appropriation of power assigned to” the Board and other entities.

The County moved to dismiss the suit against it for failure to state a valid cause of action, and the trial Court denied the motion. On appeal, the Fourth Department modified the order, stating, “[A]bsent fraud or other special circumstances [not present here], an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client.” Therefore, the County, as counsel to the Board, owed no duty to the decedent.

If you have questions about this case or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

Prepared by Eric W. Marriott, Esq.

Daily Archives: October 19, 2017

Municipal Update October 18, 2017