OPINION OF THE COURT
When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held
I
In 1998, plaintiff Tiffany Applewhite suffered from uveitis, an eye condition, which required the intravenous administration of a prescribed medication. After a visiting nurse injected Tiffany with the drug at her home, the 12-year-old girl experienced an episode of anaphylactic shock. When Tiffany’s breathing difficulties worsened, her mother dialed 911 seeking assistance. While the nurse performed whatever emergency care that she could provide, Tiffany had a seizure followed by cardiac arrest.
Within minutes after the 911 call was placed, two emergency medical technicians (EMTs) employed by the New York City Fire Department arrived at the Applewhite apartment, having traveled in a basic life support ambulance. The EMTs had been dispatched because no advanced life support (ALS) ambulance transporting paramedics was available at the time. One EMT immediately began performing cardiopulmonary resuscitation (CPR) on Tiffany while the other called for an ALS ambulance and then retrieved equipment from the ambulance.
At some point, Tiffany’s mother allegedly requested that the EMTs transport Tiffany to nearby Montefiore Hospital. The EMT continued to conduct CPR on Tiffany until paramedics from a private hospital, who arrived in an ALS ambulance, appeared at the scene. The paramedics injected Tiffany with epinephrine to counter the effects of anaphylactic shock, intubated her, administered oxygen and then transported her to Montefiore Hospital. Tiffany survived the ordeal but tragically suffered serious brain damage.
Tiffany and her mother commenced this action against the nurse, her employer (Accuhealth, Inc.), and the City of New York and its emergency medical services (EMS). Accuhealth dissolved in bankruptcy and the lawsuit against the nurse was settled. Thus, the only claims that remain outstanding are those against the municipal defendants (referred to collectively as the City).
The City moved for summary judgment, primarily contending that it was immune from liability because it did not owe a special duty to plaintiffs. In the alternative, the City maintained
The Appellate Division reversed and reinstated the claims against the City (90 AD3d 501 [1st Dept 2011]). It determined that the City’s emergency medical response was governmental in nature, but found that plaintiffs raised triable issues of fact as to whether the City had assumed a special duty to plaintiffs and whether it proximately caused their injuries. The Appellate Division certified a question to us asking if its decision was correct.
II
When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011], cert denied sub nom. Ruiz v Port Auth. of New York & New Jersey, 568 US —, 133 S Ct 133 [2012]). A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises” (Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation marks omitted]). In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal quotation marks omitted]).
Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question for the courts to decide (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446-447; Sebastian, 93 NY2d at 793-794). Police and fire protection are examples of long-recognized, quintessential governmental functions (see e.g. Valdez v City of New York, 18 NY3d 69, 75 [2011]; Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709 [1984]). Additional examples include security operations at the World Trade Center (see Matter of World Trade
If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “ ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” (Valdez, 18 NY3d at 75, quoting Lauer v City of New York, 95 NY2d 95, 100 [2000]). We have recognized that a special duty dan arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition (see e.g. Metz, 20 NY3d at 180). It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity.1
In this case, the parties dispute whether the City exercised a governmental or proprietary function when the EMTs initiated emergency care. The City asserts that the provision of 911 referrals and emergency medical service responses are within the traditional responsibilities of municipal government, similar in nature to emergency fire protection services. Plaintiffs, however, maintain that the governmental function terminated with the arrival of the EMTs at Tiffany’s home and a proprietary function arose once emergency medical care was undertaken since treatment of this nature is generally offered by private parties (e.g., doctors and hospital personnel) and the City charges fees for its ambulance services. Consistent with their respective arguments, the City asserts that plaintiffs failed, as a matter of law, to establish triable issues of fact pertaining to the creation of a special relationship,2 and plaintiffs urge that summary judgment was inappropriate because there are factual disputes to be resolved before the issue of special duty can be determined.
In Laratro v City of New York (8 NY3d 79 [2006]), the plaintiff sued the City for responding too slowly to a 911 call (the ambulance took 35 minutes to arrive, as opposed to the several-minute response time in this case). Our analysis began with the recognition that “[protecting health and safety is one of municipal government’s most important duties” (id. at 81) and this responsibility extends to “the duty to provide police protection, fire protection or ambulance service” to the general public (id. at 82-83 [emphasis added]). We proceeded to determine whether the plaintiff had sufficiently established the existence of a special duty—an inquiry that would have been unnecessary had we viewed the City’s response to the 911 call as a proprietary function. Hence, we have previously viewed municipal emergency systems and responses to 911 calls to be within the sphere of governmental functions.
Our concurring colleagues contend that the EMTs acted in a proprietary capacity when they began to render aid, equating their conduct with medical services such as mental health care
Consistent with this view and our reasoning in Laratro (8 NY3d 79), we believe that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function—certainly no less so than municipal garbage collectors and school playground supervisors (see Nehrbas, 2 NY2d at 194-195; Bonner, 73 NY2d at 932; see also Edwards v City of Portsmouth, 237 Va at 171, 375 SE2d at 750)— because they exist “for the protection and safety of the public” and not as a “substitute for . . . private enterprises” (Sebastian, 93 NY2d at 793 [internal quotation marks omitted]). The facts of this case reinforce this view since the purportedly negligent EMTs were employees of the City’s fire department using City resources in an effort to fulfill the City’s obligation to answer an emergency 911 dispatch and attempt to save Tiffany Applewhite’s life. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in New York City is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa (see Edwards v City of Portsmouth, 237 Va at 171-172, 375 SE2d at 750 [“the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of
Moreover, and unlike the types of medical providers identified by the concurrences, the EMTs employed by the New York City Fire Department (FDNY) and deployed via the 911 system receive training in basic life support techniques and their range of approved emergency services is limited by law (see Public Health Law § 3001 [6] [defining the term “emergency medical technician”]; 10 NYCRR 800.6 [c] [listing eight types of emergency medical services personnel]; 10 NYCRR 800.20 [c] [5] [i] [describing the required curricula for various classes of first responders]). Basic EMTs function in a “pre-hospital setting” and their activities are generally restricted to “CPR, oxygen administration, bleeding control, foreign body airway obstruction removal, and spinal immobilization.”4 Most EMTs (who are not specially certified as paramedics) are not authorized by law to administer medication, such as epinephrine, or perform invasive procedures, and do not have access to advanced diagnostic and medical treatment equipment or physician assistance (see generally 10 NYCRR 800.20 [c] [5] [i] [a]-[c]), all of which are common in public and private hospital facilities. EMTs cannot be realistically compared to the proprietary medical professionals whose licensure requires extensive educational and training credentials, and who typically provide services at hospital or medical facilities rather than in the unpredictable community-at-large.
Hence, we hold that a municipal emergency response system— including the ambulance assistance rendered by first responders such as the FDNY EMTs in this case—should be viewed as “a classic governmental, rather than proprietary, function” (Valdez, 18 NY3d at 75).
IV
Our conclusion does not necessarily immunize the City from liability because plaintiffs may yet establish that a special duty was owed to them. Of the three ways that a plaintiff may prove the existence of a special duty, only the second is at issue in this appeal—whether the City voluntarily assumed a “special relationship” with the plaintiffs beyond the duty that is owed to the public generally. The response to that question requires the presence of four elements:
“ ‘(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) knowledgePage 431on 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’ ” (Laratro, 8 NY3d at 83, quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987]).
A plaintiff must satisfy each of these factors in order to establish a special relationship. Here, the parties’ dispute centers on the first and fourth elements. We agree with the Appellate Division that plaintiffs have adequately presented questions of fact on both of these factors.
Tiffany’s mother recalled that once she realized the treatment provided by the EMTs would be limited to CPU, she “asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at that time.” The EMT apparently continued performing CPR and allegedly indicated that he was awaiting the arrival of ALS ambulance personnel. This poses a question of fact as to whether the EMTs, through their actions or promises, assumed an affirmative duty in deciding to have ALS paramedics undertake more sophisticated medical treatment rather than transporting the child to a hospital.
A factual resolution by a jury is also necessary to resolve the justifiable reliance element. It is possible that a fact finder could conclude that it was reasonable for Tiffany’s mother to rely on the EMTs’ alleged assurances rather than seek an alternative method for transporting Tiffany to the nearby hospital since the child’s mother claims that she was not informed that it would take about 20 minutes for the ALS ambulance to arrive. Although it is true, as the City contends, that plaintiffs have not specifically identified any “ ‘other available avenues of protection’ ” to which the mother could have resorted (Dinardo v City of New York, 13 NY3d 872, 874 [2009], quoting Cuffy, 69 NY2d at 261), the allegations raise the question of whether the EMTs may have “lulled” plaintiffs “into a false sense of security” (Dinardo, 13 NY3d at 874 [internal quotation marks omitted]). Plaintiffs are therefore entitled to show how the EMTs’ statements or “conduct deprived [plaintiffs] of assistance that reasonably could have been expected from another source” (Merced v City of New York, 75 NY2d 798, 800 [1990]). In this regard, plaintiffs have the ultimate burden of establishing that some other reasonable alternative was available (see Valdez, 18 NY3d at 75).
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
1.
Contrary to the parties’ arguments, our precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to *427the special duty analysis (see generally McLean v City of New York, 12 NY3d 194, 202 [2009]; Schuster v City of New York, 5 NY2d 75, 82 [1958]).
2.
Although the City claims that plaintiffs were required to specifically plead the existence of a special duty in their complaint, we decline to address this issue because it was not properly raised in Supreme Court. Additionally, the City does not challenge the Appellate Division’s determination that the EMTs were “acting in a ministerial capacity” (90 AD3d at 503).
3.
In fact, as Judge Abdus-Salaam’s concurrence observes (see concurring op at 437), government-operated ambulances handle approximately two thirds of EMS tours in New York City (see 2012/2013 Ann Rep of Fire Dept of City of New York at 27, available at http://www.nyc.gov/html/fdny/pdf/publications/ annual_reports/2012_annual_report.pdf [accessed June 19, 2013]).
4.
See Fire Dept of City of New York, http://www.nyc.gov/html/fdny/html/ community/emt_medic_faq.shtml (accessed June 19, 2013).
5.
During the 2012 fiscal year alone, there were approximately 1.4 million EMS apparatus responses in New York City—an average of approximately 3,800 per day—most of which were performed by municipal employees (see 2012/2013 Ann Rep of Fire Dept of City of New York at 26-27, available at http://www.nyc.gov/html/fdny/pdf/publications/annual_reports/2012_annual _report.pdf [accessed June 19, 2013]).