The opinion
Rosenberger, J. P.
(dissenting). Because the jury’s finding of negligence against the City cannot reasonably be reconciled *91 with its determination that the traffic agent’s negligent conduct was not the proximate cause of the accident, a new trial is warranted.
This negligence action arises out of a traffic accident that occurred on April 28, 1992. Defendant Jose Rodriguez was waiting for his nephews in a car that was illegally parked in a “No Standing Zone” on West 48th Street between Broadway and Seventh Avenue. The car was owned by defendant Carmen Morales. Defendant Audrey Jolly, a traffic enforcement agent employed by defendants the City of New York and the Department of Transportation, approached and told him several times that he should move the car or else he would get a ticket.
Though Jolly claims she did not raise her voice, three witnesses who worked in stores on that block testified that Jolly was screaming at Rodriguez and banging on the window of the car. One of the witnesses said that he went inside the store to get away from the noisy disturbance that Jolly was making.
Rodriguez attempted to communicate to Jolly that he could not speak English and did not know how to drive. Another of the shopkeeper witnesses corroborated Rodriguez’s story by saying he overheard Rodriguez say in Spanish that he could not drive. For her part, Jolly testified that when she asked him to move the car, he said something in “accented English,” but she could not remember what it was.
Rodriguez then went to look for his nephews, but could not find them and returned to the car. Jolly returned a few minutes later and repeatedly ordered him to move, again allegedly screaming and banging on the car. Though admittedly unable to drive, Rodriguez attempted to move the car. In the process, he backed up onto the sidewalk, careened across the street, and crashed into a storefront, injuring the bystanders who are the plaintiffs in this lawsuit.
In the liability phase of the bifurcated trial, the jury unanimously found that Rodriguez was negligent and that such negligence was a proximate cause of the accident. However, by a vote of five to one, the jury also found that the City defendants were negligent but that their negligence was not a proximate cause of the accident. Thus, Rodriguez and Morales were the only defendants found liable to plaintiffs. Only plaintiff Ohdan and defendant City of New York are parties to this appeal.
Plaintiff Ohdan’s claim of inconsistent verdicts is unpreserved for appellate review because she did not make a motion *92 to that effect before the jury was discharged (Barry v Manglass, 55 NY2d 803 ). However, the verdict was against the weight of the evidence, requiring a new trial. Such a conclusion is compelled when “the jury could not have reached its verdict on any fair interpretation of the evidence” (Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787, 789 ).
The jury’s findings as to liability are incoherent. The City was found negligent. It could only be negligent because its employee intimidated Rodriguez into moving the car in an unsafe manner. The risk that Rodriguez would feel compelled to move the car when Jolly continued to badger him without trying to understand his protestations that it was unsafe, as well as the risk that a driver flustered by her abusive conduct would be more likely to drive unsafely whether or not he was otherwise able to drive, were precisely the risks that made Jolly’s harassment of Rodriguez negligent with respect to the plaintiff bystander. The majority admits that an authorized driver in the same position might foreseeably fail to take proper precautions because she was so upset by abuse from the traffic agent. If it is foreseeable that even an otherwise qualified driver would make foolish decisions under this type of pressure, it is equally foreseeable that an unlicensed person would do so, especially since he had no options but to move the car or endure abuse. In either situation, the traffic agent’s abusive conduct directly caused the driver to exercise poor judgment in the operation of the vehicle. The specific error of judgment—either trying to. drive when unlicensed, or failing to take normal precautions even though he possessed the requisite skills—should not matter. The majority would only find proximate cause in the latter situation, but this distinction seems artificial. The City can hardly argue that it was unforeseeable that Rodriguez would try to drive the car, when Jolly was stubbornly insisting that he do exactly that. In fact, had Jolly not behaved in this manner, it is unlikely that he would have attempted to drive at all.
This Court rejected just such a defense by the City in Maloney v Scarfone ( 25 AD2d 630, 631 ). There, as here, the person sitting in the illegally parked car was not licensed to drive, but the traffic officer ignored this objection and repeatedly ordered the passenger to move the car, “reinforcing his directive with an expletive” (supra, at 630). The “frightened” man drove the car for a few blocks before hitting plaintiff’s decedent (supra, at 630). The City unsuccessfully argued that the driver’s own negligence in driving the car when he knew himself to be unqualified was an intervening act that absolved the City of liability.
*93 The majority cites Maloney (supra) for the proposition that if the traffic agent did not know of the driver’s inability to drive, a rational jury could find the driver liable and absolve the City. While this is true, it is not the issue before us. The majority’s comparison obscures a basic difference between Maloney and the instant case.
In Maloney (supra), the driver was originally held liable but the trial court set aside the verdict against the City. We remanded the case for a new trial against the City because the parties had failed to explore the issue of the traffic agent’s negligence, specifically whether he had known that the driver was unlicensed. Clearly, a jury could rationally absolve the City if it found that the agent was not negligent, and as noted above, this could be the outcome if a new trial were ordered in the instant case. What is not reasonable is the jury’s finding that the City was negligent but not liable. Maloney did not deal with that fact pattern.
More recently, in Persaud v City of New York ( 267 AD2d 220 ), the Second Department denied summary judgment to the City and the police officer under circumstances very similar to the fact pattern in the instant case. In Persaud , the woman sitting in the car could not drive, but when the officer kept waving at her to move, she felt compelled to move the car. Since she was an unqualified driver, she lost control and injured a pedestrian. Significantly, the Court held that negligence liability could be predicated upon the officer’s failure to inquire whether the passenger was licensed to drive before ordering her to move. “Once the police officer undertook to direct her to move the car, he was obligated to do so with due care * * *. Accordingly, the plaintiffs were not required to demonstrate a special relationship” (Persaud v City of New York, supra, at 220).
According to the majority, one can rationally conclude that no reasonable traffic agent would expect an unskilled person to attempt to drive in response to the agent’s verbal abuse. Yet, the drivers in Maloney (supra) and Persaud (supra) did exactly that, which suggests that such a response is not so uncommon or unforeseeable after all. Whether the agent ignored the driver’s claim of incapacity, as in Maloney , or was unable to understand it, as Jolly alleged, is irrelevant to the causation issue before us. The fact remains that Jolly, like the traffic agent in Maloney , was impervious to protests and obviously planned to badger the driver till he took action.
Conversely, if Jolly could not have been expected to know of Rodriguez’s inability to drive, and if she was correct in testify *94 ing that she did not raise her voice to him, the jury could have found that the City was not negligent. The jury, however, rejected these contentions and found negligence.
There is no merit to the City’s other contentions that it cannot be held liable because of the “special duty” rule (Balsam v Delma Eng’g Corp., 90 NY2d 966, 967 ) or because of officers’ immunity from negligence liability for discretionary acts (Tango v Tulevech, 61 NY2d 34, 40 ). As a general rule, a municipality bears no liability for its agent’s negligent performance of governmental functions unless the agent assumed a special duty to the plaintiff (Balsam v Delma Eng’g Corp., supra).
The special duty rule, however, was designed for cases where a plaintiff alleges that the City improvidently allocated its resources, such as by not assigning sufficient security personnel to an area (Johnson v New York City Health & Hosps. Corp., 246 AD2d 88 [challenging security measures at mental hospital where patient entered unauthorized area and killed doctor]), or where a plaintiff challenges a failure to intervene more actively or effectively in a dangerous situation (Balsam v Delma Eng’g Corp., supra [failure to block road where dangerous ice condition was present]). In these situations, courts generally refuse to second-guess the governmental exercise of professional judgment.
Yet, as even defendant admits, the special duty rule has no relevance to cases where City officers actually inflict injury (Rodriguez v City of New York, 189 AD2d 166, 172 ; Snyder v City of Rochester, 124 AD2d 1019 ). As noted previously, the Second Department recently concluded in Persaud v City of New York (supra) that the officer’s asking a passenger to move the car, without checking that this was safe, constituted an affirmative act of misfeasance, not implicating the special duty rule.
Defendant attempts to avoid the operation of these principles by arguing that any affirmative acts of misfeasance by Jolly were not the proximate cause of plaintiff’s injuries. As discussed above, this argument contradicts the established case law of this Court (Maloney v Scarfone 25 AD2d 630 , supra; Persaud v City of New York, supra).
Analogous principles operate to defeat the immunity defense, which in any event would only shield Jolly herself from personal liability (Tango v Tulevech, 61 NY2d 34, 40 , supra [“Municipalities surrendered their common-law tort immunity for the misfeasance of their officers and employees long ago”]). Contrary to defendant’s mischaracterization of the record, *95 plaintiff does not premise her negligence claim on Jolly’s discretionary decision to ask the illegally parked drivers on that block to move their cars instead of issuing tickets to them, nor on the absence of a policy requiring traffic officers to inquire first whether the occupant of the car could drive. Rather, plaintiff alleges that Jolly’s negligence consisted of harassing Rodriguez and ignoring his protests without making any effort to find out what he was saying. Such unprofessional behavior clearly does not fall within the range of discretionary decisions immunized by public policy. A “total failure to exercise discretion” can give rise to liability (Mon v City of New York, 78 NY2d 309, 316 , rearg denied 78 NY2d 1124 ; see also, Haddock v City of New York, 75 NY2d 478 ). Immunity will not cloak the actions of an officer who “affirmatively intervened in a dangerous situation and negligently caused injury to a bystander, by acts which deviated from clearly accepted and established protocols and procedures” (Rodriguez v City of New York, supra, at 178).
Kenavan v City of New York ( 70 NY2d 558, 569 ), a case involving an allegedly negligent choice of firefighting procedures, imposes important qualifications on government employees’ immunity: “liability will not be imposed where the firefighter’s conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment, but judgment nonetheless” (emphasis added). Surely the City does not mean to argue that physically and verbally intimidating an unqualified person into driving a car is a reasonable method of enforcing parking regulations.
Nardelli and Buckley, JJ., concur with Saxe, J.; Rosenberger, J. P., and Ellerin J., dissent in a separate opinion by Rosenberger, J. P.
Judgment, Supreme Court, New York County, entered May 27, 1999, affirmed, without costs.