Ojeda v. MTA

20-2768
Ojeda v. MTA
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 20-2768
D OMINGO O JEDA,
Plaintiff-Appellee,
v.
METROPOLITAN TRANSPORTATION AUTHORITY ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: MARCH 16, 2022
D ECIDED: J ULY 19, 2022
Before: POOLER , WESLEY , and MENASHI , Circuit Judges.
Domingo Ojeda, a police officer for the Metropolitan
Transportation Authority (“MTA”), sued the MTA under the Federal
Employers’ Liability Act (“FELA”), alleging that the MTA negligently
failed to provide him with a safe workplace when it sent him on patrol
in a vehicle without a prisoner compartment. A jury found the MTA

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liable and awarded Ojeda damages. The MTA moved for judgment
as a matter of law notwithstanding the verdict, arguing that it is
immune from liability pursuant to the governmental function defense
and that the evidence was insufficient to support the verdict because
it lacked expert testimony. The U.S. District Court for the Southern
District of New York denied that motion, holding that the
governmental function defense does not apply in FELA cases.
We hold that the FELA does not abrogate the governmental
function defense, and therefore the defense is available in FELA cases.
The defense does not apply on the merits in this case, however,
because the MTA has failed to show that it performed a discretionary
governmental function when committing the allegedly negligent acts.
Additionally, we hold that expert testimony was not required in this
case. We affirm the judgment of the district court.
PHILIP J. D INHOFER , Philip J. Dinhofer LLC, Rockville
Centre, NY, for Plaintiff-Appellee.
BECK S. FINEMAN, Ryan Ryan Deluca LLP, Bridgeport,
CT, for Defendant-Appellant.
MENASHI , Circuit Judge:
Plaintiff-Appellee Domingo Ojeda was employed as a police
officer by the Metropolitan Transportation Authority (“MTA”), the
defendant-appellant in this case. While patrolling a railroad station,
Ojeda witnessed an incident between a man and a woman in the
station’s parking lot. After intervening and discovering that the man

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had an open order of protection against him, Ojeda handcuffed the
man. The arrestee fled, and Ojeda injured himself in pursuit.
Ojeda sued the MTA under the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51, alleging that the MTA’s negligence—
including its failure to provide him with a prisoner compartment in
his patrol car—caused his injuries. A jury ruled in favor of Ojeda and
awarded him damages. On appeal, the MTA argues that it is immune
from liability pursuant to the governmental function defense and
that, in any event, it cannot be held liable without expert testimony.
The district court rejected these arguments when it denied the MTA’s
motion for judgment as a matter of law. We affirm.
BACKGROUND
The MTA was created under New York law as “a body
corporate and politic constituting a public benefit corporation.” N.Y.
Pub. Auth. L. § 1263. Its purpose is “the continuance, further
development and improvement of commuter transportation and
other services related thereto within the metropolitan commuter
transportation district.” Id. § 1264. Metro-North Commuter Railroad
Company (“Metro-North”) is a subsidiary of the MTA. N.Y. Comp.
Codes R. & Regs. tit. 21, § 1085.1(a). Metro-North “operates and
maintains the Hudson, Harlem, New Haven, Port Jervis and Pascack
Valley commuter railroad lines.” Id. § 1085.2(g).
The MTA is “authorized and empowered, to provide and
maintain an authority police department and a uniformed authority
police force.” N.Y. Pub. Auth. L. § 1266-h. According to statute,
“[e]ach member of such uniformed police force shall be a ‘police
officer’ for the purposes of the criminal procedure law, with all of the
powers of such police officers thereunder.” Id. The MTA police may

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“enforce and prevent violation of all laws and ordinances” “in and
about any or all of the facilities owned, occupied and/or operated by
the [MTA] and its subsidiary corporations.” Id.
In 2003, Ojeda joined the MTA police and attended the New
York Police Department academy for six months for basic training. In
the first part of his thirteen-year career as an MTA police officer,
Ojeda worked in the patrol unit. He then joined the emergency
services unit (“ESU”), a unit within the police department that,
according to Ojeda, “responds to a higher problematic situation that
is beyond the scope of the regular police officer.” App’x 106-07. Such
situations include “barricaded subjects,” “emotionally disturbed
persons,” “extrication from vehicles,” and “anything that uses
specialized tools or is beyond the capacity of the police officer to
handle.” Id. at 107. To serve in the ESU, Ojeda had to undergo
specialized training.
On a typical day, ESU officers are assigned to a particular
region of the metro system and either make themselves available for
a regular patrol officer’s request for assistance or conduct patrol
themselves. The standard vehicle provided to ESU officers is a truck
with a utility body attached to it. The utility body’s contents include
medical emergency equipment, protective suits, vehicle extrication
equipment, and rope rescue equipment. The truck is not equipped to
transport people placed in custody. Instead, if an ESU officer makes
an arrest, he must request assistance from another patrol unit to
transport the arrestee.
Ojeda and his partner, Officer Gregg Cella, were assigned to
patrol Harrison Station, a commuter rail stop on Metro-North’s New
Haven Line, on the night of October 2, 2013. About two hours into

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their patrol, they spotted a vehicle enter the station’s parking lot with
a female driver and a male passenger. Both occupants exited the car,
and the man reentered the car to sit in the driver’s seat. As the woman
reached into the car on the passenger side—with the door open—the
man drove the car in reverse. As Ojeda tells it, “[t]he door knock[ed]
her down and the door literally [went] right over her head.” Id. at 121.
Ojeda left his own vehicle to address the situation, and Cella
followed him. Ojeda directed the driver to pull the car over to the
curb, and Ojeda turned off the engine and removed the keys. He then
brought the man to the rear of the car and began questioning him. He
learned that the man and the woman had a child together. Ojeda also
noticed that the woman was “up and screaming and yelling with”
Cella and that she “was speaking in both Spanish and English.” Id. at
123-24.
Because Ojeda spoke Spanish, he traded places with Cella and
began questioning the woman. She claimed that there was an order
of protection against the man. Ojeda told Cella what the woman said,
which prompted Cella to search for any outstanding warrants or
orders of protection using the man’s driver’s license. That review
confirmed that there was an open order of protection, and Ojeda
proceeded to place the man in handcuffs and arrest him. Ojeda
secured the arrestee by holding onto the handcuffs while Cella
communicated with dispatch.1
At that point, the woman began talking with the man. Ojeda
told them to stop speaking with each other. The man asked Ojeda to
1 According to Ojeda, Cella was ten to fifteen feet away from Ojeda when
he spoke with dispatch on his cell phone. Ojeda also asserts that Cella was
on an unrelated second phone call right after he spoke with dispatch.

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loosen the handcuffs. Ojeda requested that the man call him “sir or
officer” and said that “officer works,” and the man began to refer to
Ojeda as “Officer Works.” App’x 130. Now suspecting that the man
was under the influence, Ojeda turned to the woman and asked if he
had a history of using drugs. The woman responded that he did.
Ojeda let go of the handcuffs to approach the woman and ask
what drugs the man had been using. At that point, the man took off
running. Ojeda pursued him on foot, but as he passed the ESU truck,
he felt a “pop” in his leg and slowed down. Id. at 131. As the man
disappeared, Ojeda encountered another police officer, who called
backup to assist in a search. (The search was unsuccessful, but the
following day the man turned himself in.)
After backup arrived, Ojeda remained at the scene for another
three-and-a-half hours to search for his prisoner. Later that night, he
drove himself to a hospital, where doctors determined that he may
have torn his Achilles tendon. Because of his injury, Ojeda was placed
on restricted duty. After nearly a year passed without a full recovery,
Ojeda underwent surgery in September 2014. The following year, the
MTA police chief marked Ojeda as “disabled” for pension purposes.
Five months later, his employment with the MTA was terminated.
Ojeda filed a complaint against the MTA under the FELA,
alleging that the MTA’s negligence caused his injuries. Specifically,
Ojeda alleged that the MTA negligently (1) failed “to provide the
plaintiff with the necessary and proper tools and equipment with
which to work,” (2) failed “to provide [Ojeda] with an appropriate
and timely backup,” and (3) “provid[ed] plaintiff with a police
partner who left plaintiff alone to manage with two persons.” Am.
Compl. ¶ 21, Ojeda v. MTA, 477 F. Supp. 3d 65 (S.D.N.Y. 2020) (No.

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16-CV-3), ECF No. 29. In connection with his injuries, Ojeda sought
$5 million in damages.
Before trial commenced, the MTA moved in limine to exclude
evidence regarding the MTA’s decision to assign the ESU vehicle to
Ojeda and regarding Cella’s alleged negligence. See Motions in
Limine, Ojeda, 477 F. Supp. 3d 65, ECF Nos. 103, 104. According to the
MTA, the governmental function defense protected it from liability
based on its decisions to issue Ojeda equipment or to assign Cella as
his partner. The MTA also argued that those claims would require
expert evidence, which Ojeda failed to produce. The district court
declined to decide whether the governmental function defense is
available in a FELA case, but it granted the MTA’s motion insofar as
Ojeda was not allowed to “testify about the MTA’s official policies
and practices of assigning police officers to a specific patrol car” or to
“state whether Officer Cella acted negligently during the encounter
based on the MTA’s official policies and practices of detaining an
arrestee.” App’x 83. However, Ojeda was permitted to “testify about
his experience of being assigned to a patrol car as well as what he saw
Officer Cella doing during the arrest so long as his testimony is based
on his own observations and experiences.” Id. at 83-84.
The case went to trial, and the only testimony came from Ojeda,
Ojeda’s treating orthopedist, and Cella. At trial, the parties stipulated
that the MTA “does not study response time to requests for backup
calls.” Trial Transcript at 99, Ojeda, 477 F. Supp. 3d 65. Before the case
was submitted to the jury, the MTA moved for a directed verdict and
reiterated its arguments that Ojeda could not establish liability
without expert testimony and that it was immune from liability
pursuant to the governmental function defense. The district court

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denied the motion. Although the district court “agree[d] … that
there’s not a wealth of evidence in this case on certain things,” it
decided “there’s enough to go to the jury.” App’x 152. As to the
governmental function defense, the district court stated that “[w]hen
looking at the case law, it is not clear that it even applies to a FELA
case.” Id. at 151.
The jury found that Ojeda had proven by a preponderance of
the evidence that the MTA “was negligent in failing to provide a safe
place to work on October 2, 2013,” and that such negligence “caused,
in whole or in part, [the] injury to” Ojeda. Verdict at 1, Ojeda, 477
F. Supp. 3d 65, ECF No. 138. Additionally, the jury determined that
eighty percent of Ojeda’s damages resulted from his own negligence.
Id. at 2. Because the jury found that Ojeda’s total damages were
$2,650,000, judgment was entered in favor of Ojeda for a total award
of $530,000. Judgment at 1-3, Ojeda, 477 F. Supp. 3d 65, ECF No. 139.
The MTA renewed its motion for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50 for the same reasons it
articulated in its motions in limine and its motion for a directed
verdict. The district court denied the motion and again rejected the
MTA’s arguments. Ojeda, 477 F. Supp. 3d at 73-76. First, the district
court concluded that, despite the lack of expert testimony, “the
evidence presented at trial was sufficient to support the jury’s finding
that [the MTA] was 20% negligent for failing to provide [Ojeda] with
a reasonably safe place to work under FELA.” Id. at 75. Second, the
district court rejected the MTA’s argument that the governmental
function defense shields the MTA from liability in this case. Id. at 76.
This time, the district court was less circumspect; it held that “the

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governmental function defense does not apply in FELA cases, and
that the MTA is not entitled to immunity under such a defense.” Id.
The MTA timely appealed.
DISCUSSION
“We review de novo the district court’s decision on a motion for
judgment as a matter of law, applying the same standard that is
required of the district court.” Smalls v. Collins, 10 F.4th 117, 131 (2d
Cir. 2021) (internal quotation marks omitted). “[W]e are required to
consider the evidence in the light most favorable to the party against
whom the motion was made and to give that party the benefit of all
reasonable inferences that the jury might have drawn in his favor
from the evidence.” Black v. Finantra Cap., Inc., 418 F.3d 203, 208-09
(2d Cir. 2005) (internal quotation marks omitted). When reviewing a
district court’s denial of a Rule 50 motion, we “cannot assess the
weight of conflicting evidence, pass on the credibility of the witnesses,
or substitute [our] judgment for that of the jury.” Tolbert v. Queens
Coll., 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bolt
Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988)).
The MTA raises two arguments on appeal. First, it contends
that the governmental function defense shields the MTA from liability
for its decision to send Ojeda on patrol in a truck without a prisoner
compartment, its decision to assign him Cella as a partner, and its
failure to study backup response times. Second, the MTA in the
alternative argues that the district court erred in permitting a jury to
find negligence on the part of the MTA without expert testimony. We
address these arguments in turn.

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I
First, the MTA argues that the governmental function defense
shields it from liability in this case. In the MTA’s view, the alleged
negligence occurred in “the exercise of police discretion,” which as a
“quintessential governmental function[]” cannot form the basis of
liability for negligence. Appellant’s Br. 16-17. Ojeda contends—and
the district court held—that the FELA bars the MTA from asserting
the governmental function defense. We hold that the governmental
function defense remains available in FELA suits, but it offers no relief
to the MTA in this case.
A
We begin with whether the MTA may claim the governmental
function defense in FELA cases.2 The FELA provides that “[e]very
common carrier by railroad while engaging in commerce between
any of the several States or Territories … shall be liable in damages to
any person suffering injury while he is employed by such carrier in
such commerce … for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or employees
of such carrier.” 45 U.S.C. § 51. “In FELA actions, the plaintiff must
prove the traditional common law elements of negligence: duty,
breach, foreseeability, and causation.” Tufariello v. Long Island R.R.,
458 F.3d 80, 87 (2d Cir. 2006).
2 As a general matter, the MTA is a governmental entity entitled to invoke
the governmental function defense. See Doe v. City of New York, 890 N.Y.S.2d
548, 550 (N.Y. App. Div. 2d Dep’t 2009) (holding the MTA to be “immune
from negligence claims arising out of the performance of [its] governmental
functions”).

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Though a FELA action may resemble a traditional negligence
claim, “the plaintiff’s burden in making a showing of causation and
negligence is lighter under FELA than it would be at common law
because ‘the theory of FELA is that where the employer’s conduct falls
short of the high standard required of him by the Act and his fault, in
whole or in part, causes injury, liability ensues.’” Id. (quoting Kernan
v. Am. Dredging Co., 355 U.S. 426, 438-39 (1958)). The FELA “does not
define negligence, leaving that question to be determined … by the
common law principles as established and applied in the federal
courts.” Urie v. Thompson, 337 U.S. 163, 174 (1949) (internal quotation
marks omitted). In other words, “[w]hat constitutes negligence for the
statute’s purposes is a federal question, not varying in accordance
with the differing conceptions of negligence applicable under state
and local laws for other purposes. Federal decisional law formulating
and applying the concept govern.” Id.; see also id. (“Erie R. Co. v.
Tompkins, 304 U.S. 64[ (1938)], has no application.”).
At the same time, the Supreme Court “ha[s] made clear” that
what constitutes negligence under the FELA “generally turns on
principles of common law.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532,
543 (1994). The statute “is founded on common-law concepts of
negligence and injury, subject to such qualifications as Congress has
imported into those terms.” Urie, 337 U.S. at 182. Accordingly, the
Supreme Court has directed us to approach interpretation of the
FELA in two steps. First, “we must look to FELA itself, its purposes
and background, and the construction we have given it over the
years.” Gottshall, 512 U.S. at 541. Second, “because FELA
jurisprudence gleans guidance from common-law developments, we
must consider the common law’s treatment of the right of recovery
asserted” by the plaintiff. Id. at 541-42 (internal quotation marks and

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citation omitted). “[A]lthough common-law principles are not
necessarily dispositive of questions arising under FELA, unless they
are expressly rejected in the text of the statute, they are entitled to
great weight in our analysis.” Id. at 544; see also id. (“Only to the extent
of … explicit statutory alterations is FELA an avowed departure from
the rules of the common law.”) (internal quotation marks omitted).
Applying that analysis, we hold that the governmental function
defense remains available in FELA cases. There is no dispute that the
governmental function defense is a creature of the common law. In
Gottshall, the Supreme Court drew on the common law to define the
right to recover under the FELA for negligently inflicted emotional
distress. Id. at 544-49. It reasoned that “because negligent infliction of
emotional distress is not explicitly addressed in the statute, the
common-law background of this right of recovery must play a vital
role in giving content to the scope of an employer’s duty under FELA
to avoid inflicting emotional injury.” Id. at 551. In this case, though
the FELA expressly abrogates the common-law defenses of
contributory negligence and assumption of risk, 3 the statute says
nothing about the governmental function defense. Therefore, as in
Gottshall, the common-law background means that the governmental
function defense remains available in FELA cases.
Ojeda argues that we should understand 45 U.S.C. § 55
expressly to displace the governmental function defense. That section
provides that “[a]ny contract, rule, regulation, or device whatsoever,
3 See 45 U.S.C. § 53 (“[T]he fact that the employee may have been guilty of
contributory negligence shall not bar a recovery.”); id. § 54 (“In any action
brought [under the FELA], [an] employee shall not be held to have assumed
the risks of his employment.”).

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the purpose or intent of which shall be to enable any common carrier
to exempt itself from any liability created by this chapter, shall to that
extent be void.” According to Ojeda, the governmental function
defense is a “device” within the meaning of § 55 because that section
bars “anything” a railroad might use “to evade its liability under the
FELA.” Appellee’s Br. 29.
We disagree that § 55 can be read so broadly. The Supreme
Court has already “‘cataloged’ the ways in which FELA expressly
departed from the common law: It abolished the fellow servant rule,
rejected contributory negligence in favor of comparative negligence,
prohibited employers from contracting around the Act, and abolished
the assumption of risk defense.” Norfolk S. Ry. v. Sorrell, 549 U.S. 158,
168 (2007) (quoting Norfolk & W. R. Co. v. Ayers, 538 U.S. 135, 145
(2003)). As noted above, “unless [common-law principles] are
expressly rejected in the text of the [FELA], they are entitled to great
weight.” Gottshall, 512 U.S. at 544. Ojeda’s interpretation of “device”
as including every common-law defense against liability contradicts
that presumption. See also Nordgren v. Burlington N. R.R., 101 F.3d
1246, 1251 (8th Cir. 1996) (holding that “any device whatsoever” in
45 U.S.C. § 55 “refers only to any other creative agreements or
arrangements the railroad might come up with to exempt itself from
liability”).
We conclude that the governmental function defense remains
available in cases brought under the FELA.
B
That the MTA may claim the governmental function defense in
FELA suits, however, does not mean it avoids liability in this case.
Because the governmental function defense is an affirmative defense,

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see Ferreira v. City of Binghamton, 975 F.3d 255, 284 (2d Cir. 2020), the
MTA must show its entitlement to the defense’s protection. To that
end, the MTA argues that its actions are protected under “the
common-law doctrine of governmental immunity” that “shield[s]
public entities from liability for discretionary actions taken during the
performance of governmental functions.” Valdez v. City of New York,
18 N.Y.3d 69, 75-76 (2011).
In Owen v. City of Independence, 445 U.S. 622, 644-50 (1980), the
Supreme Court described the common law as affording
municipalities immunity from tort liability by reference to two
distinctions. First, under the “governmental-proprietary distinction,”
a municipality is liable under ordinary tort principles when
“performing the same ‘proprietary’ functions as any private
corporation,” but it is immune when “acting in [a] ‘governmental’ or
‘public’ capacity.” Id. at 645. Second, under the ministerial-
discretionary distinction, a municipality is protected from “suits …
either for the non-exercise of, or for the manner in which in good faith
it exercises, discretionary powers of a public or legislative character” but
not from suits for activities that are “ministerial in nature.” Id. at 644,
648 (internal quotation marks omitted). Thus, to evaluate whether the
governmental function defense applies, we ask two questions. First,
was the municipality engaged in a proprietary or a governmental
function? Second, if it was engaged in a governmental function, was
it exercising discretionary authority or performing a ministerial duty?
Only a governmental function performed through discretionary
authority receives the protection of the defense.4
4 See 6 Eugene McQuillin, Treatise on the Law of Municipal Corporations
§ 2628 (1913) (“As a branch of the rule of nonliability of municipalities for

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Courts in this circuit have had few occasions to explore when a
municipality may be liable to its police officers under the FELA. This
court approached the issue in Greene v. Long Island R.R., an
interlocutory appeal of the district court’s decision that the MTA was
a “common carrier by railroad” within the meaning of the FELA. 280
F.3d 224, 226 (2d Cir. 2002). The case arose from an MTA police
officer’s suit against the MTA for being “negligent in failing to
provide Greene with safe working conditions, including by failing to
equip the jeep with a siren and adequate emergency lights and
flashers.” Id. at 227. This court agreed with the district court that the
MTA was a common carrier under the FELA but “express[ed] no view
as to whether Greene was injured … by reason of any defect or
insufficiency, due to MTA’s negligence, in its equipment.” Id. at 240.
On remand, the parties in Greene settled before the district court
reached the merits. Order of Discontinuance, Greene v. Long Island
R.R., No. 98-CV-4316 (E.D.N.Y. Dec. 3, 2003), ECF No. 66.5
torts in connection with the exercise of governmental functions, is the rule
which distinguishes (1) ministerial duties from (2) legislative, judicial and
discretionary functions.”); see also Restatement (Second) of Torts § 895C
cmt. g (1979) (observing that “discretionary function” immunity “is based
on the theory that some governmental functions are of a type that should
not be subject to review and second-guessing by the courts in a tort action”);
Ferreira, 975 F.3d at 283 n.10 (“When a municipality is engaged in a
‘proprietary’ rather than a ‘governmental’ role, it is subject to the ordinary
rules of negligence that apply to private parties, so that neither
discretionary immunity nor the special duty rule apply.”) (describing New
York law).
5 State court cases in which police officers have sued the MTA for
negligence under the FELA have been similarly inconclusive. Such suits
have been dismissed for failure to show negligence with no suggestion that
the claims would be barred by the governmental function defense. See

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As noted above, what constitutes negligence under the FELA is
a federal question that depends on the common law generally rather
than on “differing conceptions of negligence applicable under state
and local laws.” Urie, 337 U.S. at 174. The MTA, however, argues that
it is entitled to the governmental function defense as defined by New
York courts. We need not decide the exact contours of the
governmental function defense under the FELA because the MTA
cannot succeed even under its assumption that we should look
primarily to New York law to describe the scope of the defense.
1
Under New York law, “[w]hen 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.” Turturro v.
City of New York, 28 N.Y.3d 469, 477 (2016) (quoting Applewhite v.
Accuhealth, Inc., 21 N.Y.3d 420, 425 (2013)). “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.”
Applewhite, 21 N.Y.3d at 425.
Curley v. Consol. R. Corp., 81 N.Y.2d 746, 747-48 (1992) (dismissing suit
alleging a defective police car because the “plaintiff’s evidence is
insufficient as a matter of law, without total speculation, to permit the
inference that any negligent act or omission on Conrail’s part caused his
injuries”) (citation omitted); Cruz v. MTA, 963 N.Y.S.2d 18, 19 (N.Y. App.
Div. 1st Dep’t 2013) (dismissing suit alleging injuries incurred after the
MTA negligently summoned the officer to the scene of an assault because
“[t]here is no reasonable basis for finding that there was any negligence on
the MTA’s part that contributed to [the] plaintiff’s injuries”).

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The defense is therefore available only if the MTA was engaged
in a governmental function. “A government entity performs a purely
proprietary role when its activities essentially substitute for or
supplement traditionally private enterprises.” Id. (internal quotation
marks omitted). By 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 such functions exist on a “continuum,” the “relevant inquiry
in determining whether a governmental agency is acting within a
governmental or proprietary capacity is to examine the specific act or
omission out of which the injury is claimed to have arisen and the
capacity in which that act or failure to act occurred.” In re World Trade
Ctr. Bombing Litig., 17 N.Y.3d 428, 446-47 (2011) (internal quotation
marks omitted).
“Police protection” is a “quintessential example of a
governmental function.” Id. at 448. That function “involves the
provision of a governmental service to protect the public generally
from external hazards and particularly to control the activities of
criminal wrongdoers.” Riss v. City of New York, 22 N.Y.2d 579, 581
(1968). Because “[t]he amount of protection that may be provided is
limited by the resources of the community and by a considered
legislative-executive decision as to how those resources may be
deployed,” tort liability based on the failure to provide adequate
police protection “could and would inevitably determine how the
limited police resources of the community should be allocated and
without predictable limits.” Id. at 581-82.

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Though this case involves the police, Ojeda does not allege that
the MTA failed adequately “to protect the public.” Id. at 581. Instead,
Ojeda’s claim is that the MTA, in assigning him a patrol car without
a prisoner compartment, failed to provide him with a safe workplace
or with proper equipment. The claim is not based on the MTA’s duties
as a governmental entity providing police protection but on the
MTA’s duties as an employer providing safe working conditions to
its employees. When acting as an employer, the MTA “is bound … to
the exercise of reasonable care in providing [its] employee with a safe
place in which to work, with proper and adequate tools, appliances
and machinery, and with fellow-employees competent for the tasks
to which they are assigned.” Marceau v. Rutland R.R. Co., 211 N.Y. 203,
209 (1914). For that reason, courts have departed from the general rule
of nonliability when a “particular act, although in connection with a
governmental function, was itself a corporate duty, so as to render the
municipality liable to employees for injuries received.” 6 McQuillin,
supra note 4, § 2620. 6 In this way, “the varied functions of a
governmental entity can be interspersed with both governmental and
proprietary elements.” World Trade Ctr., 17 N.Y.3d at 447.
The jury found, based on the vehicle, partner, and backup the
MTA provided to Ojeda, that the MTA “was negligent in failing to
6 See also 63 C.J.S. Municipal Corporations § 883 (2022) (“Although the
organization and maintenance of a fire department are generally regarded
as governmental duties, a municipality is generally held liable in the case
of a firefighter injured by defective appliances of the department or by the
negligence of others therein in the performance of the firefighter’s duties.”)
(footnote omitted); MacClave v. City of New York, 265 N.Y.S.2d 222, 224 (N.Y.
App. Div. 1st Dep’t 1965) (affirming a jury verdict against the city for
negligently furnishing a mask to a firefighter that was “dangerous to use
for general fire-fighting purposes”).

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provide a safe place to work on October 2, 2013.” Verdict, supra, at 1.
In its decisions regarding the state of Ojeda’s workplace, the MTA
was engaged in a proprietary rather than governmental function. It
therefore cannot establish a governmental function defense for that
conduct.7
2
Even if the MTA were engaged in a governmental function
when it provided Ojeda a partner, backup, and a patrol car without a
prisoner compartment, it still would need to show that its decision
was a “discretionary action[].”Valdez, 18 N.Y.3d at 75-76. Under New
York law, “[a] public employee’s discretionary acts—meaning
conduct involving the exercise of reasoned judgment—may not result
in the municipality’s liability even when the conduct is negligent.”
Lauer v. City of New York, 95 N.Y.2d 95, 99 (2000). “In other words,
even if a plaintiff establishes all elements of a negligence claim, a state
or municipal defendant engaging in a governmental function can
avoid liability if it timely raises the defense and proves that the
7 Employees such as Ojeda are not limited to bringing safe workplace suits
against their municipal employers. “An employee may recover merely as
an individual, on the ground of negligence, in a proper case, without in any
way relying on the liability of a master for injuries to his servant.”
6 McQuillin, supra note 4, § 2620. We need not decide the extent to which
the governmental function defense would defeat a FELA claim that in
substance asserted the employee’s rights as a member of the public. In this
case, Ojeda’s amended complaint brought claims that no member of the
public could bring—that the MTA failed “to provide [Ojeda] with the
necessary and proper tools and equipment with which to work,” failed “to
provide [Ojeda] with an appropriate and timely backup,” and “provid[ed]
[Ojeda] with a police partner who left plaintiff alone to manage with two
persons.” Am. Compl., supra, ¶ 21.

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alleged negligent act or omission involved the exercise of
discretionary authority.” Valdez, 18 N.Y.3d at 76.
New York’s protection for discretionary acts is not unlimited.
“[T]he governmental function immunity defense cannot attach unless
the municipal defendant establishes that the discretion possessed by
its employees was in fact exercised in relation to the conduct on which
liability is predicated.” Id. When, “viewing the record as a whole,” the
plaintiff’s claim “essentially arises from a misjudgment that was
discretionary,” New York courts hold that the municipality is entitled
to immunity. Mon v. City of New York, 78 N.Y.2d 309, 315 (1991).8
When “there is no evidence” that the municipality “exercised …
discretion” or “made a judgment of any sort,” New York courts hold
that governmental function immunity does not apply. Haddock v. City
of New York, 75 N.Y.2d 478, 485 (1990).9
8 See also Johnson v. City of New York, 15 N.Y.3d 676, 681 (2010) (holding that
the governmental function defense barred a claim arising from a stray
bullet fired by police because “on this record … it cannot be said that the
officers failed to exercise discretion in discharging their weapons”); Devlin
v. City of New York, 148 N.Y.S.3d 149, 151-52 (N.Y. App. Div. 2d Dep’t 2021)
(granting summary judgment to the city because “[t]he evidence …
demonstrated that the officers’ decision involved reasoned judgment and
an exercise of discretion”).
9 See also Stevens v. Town of E. Fishkill Police Dep’t, 156 N.Y.S.3d 288, 290
(N.Y. App. Div. 2d Dep’t 2021) (affirming the denial of a town’s motion to
dismiss because it “failed to establish, prima facie, … that the officers’
actions were discretionary, meaning conduct involving the exercise of
reasoned judgment”); Santaiti v. Town of Ramapo, 80 N.Y.S.3d 288, 296 (N.Y.
App. Div. 2d Dep’t 2018) (affirming the denial of a town’s motion to dismiss
because “it cannot be said, as a matter of law, that the discretion possessed
by the Town was in fact exercised”) (internal quotation marks and
alteration omitted).

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In this case, the MTA has failed to establish that it exercised its
discretion when, without studying backup response times, it assigned
Ojeda to patrol with Cella in a vehicle without a prisoner
compartment. Given that discretionary immunity is an affirmative
defense, Ferreira, 975 F.3d at 270, a municipal defendant must
“demonstrate[] its prima facie entitlement to judgment as a matter of
law by establishing, among other things, that … [its] decision
constituted a discretionary act involving the exercise of reasoned
judgment,” Heckel v. City of New York, 875 N.Y.S.2d 217, 218 (N.Y.
App. Div. 2d Dep’t 2009). As Ojeda notes, the MTA “does not discuss
… what policies were at issue, nor does it tie those policies to any kind
of evidence whatsoever showing that discretionary acts were actually
performed.” Appellee’s Br. 27. The MTA’s motion in limine provides
only a conclusory assertion that “the MTA exercised discretion in
procuring its vehicle fleet and in assigning officers to various duties
during any particular shift.” Motion in Limine at 3, Ojeda, 477
F. Supp. 3d 65, ECF No. 103. In sum, the MTA has not demonstrated
that it exercised its “reasoned judgment” when assigning vehicles for
patrol or otherwise affecting Ojeda’s workplace. Heckel, 875 N.Y.S.2d
at 218.
The MTA relies on McCormack v. City of New York—in which the
court dismissed a wrongful death claim based on the city’s provision
of a faulty bullet-proof vest to the decedent police officer as barred by
the governmental function defense—for the proposition that it cannot
be held liable for torts relating to a police department’s choice of
equipment. 80 N.Y.2d 808, 810 (1992). We disagree that McCormack
stands for so broad a proposition. Unlike in this case, the municipal
defendant in McCormack met its burden of showing that it exercised
its discretion. As the court noted in that case, “the evidence at trial

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showed” that “the more protective devices available on the market
afford reduced mobility, a disadvantage that might well lead City
officials to choose [the bullet-proof vest at issue] over the
alternatives.” Id. at 811. The municipality therefore showed that it had
made a reasoned judgment in its choice of equipment.
In order to establish a governmental function defense, a
municipality must demonstrate that its action involved “the exercise
of discretion or expert judgment in policy matters.” Id. at 811 (quoting
Haddock, 75 N.Y.2d at 484). The MTA has not done so in this case, and
therefore the governmental function defense does not bar Ojeda’s
suit.10
II
Second, the MTA argues that the district court erred in
permitting the jury to find liability without expert testimony on the
standard of care. “[T]he trial judge has broad discretion in the matter
10 To the extent that the jury attributed Cella’s negligent conduct to the
MTA—as opposed to finding the MTA negligent for assigning Cella as a
partner—the governmental function defense does not bar this aspect of
Ojeda’s claim either. Insofar as Ojeda alleged that Cella’s conduct made it
harder for Ojeda safely to perform his work, he did so in the context of his
safe workplace claim, which as explained above implicates a proprietary
duty. See supra Part I.B.1.; see also Buckley v. City of New York, 56 N.Y.2d 300,
302 (1982) (upholding a jury verdict finding the city liable for its police
officer negligently shooting a fellow police officer). Moreover, the MTA did
not request a special verdict or interrogatory and did not otherwise object
to the verdict form. It has therefore waived the general-verdict rule. Morse
v. Fusto, 804 F.3d 538, 551-52 (2d Cir. 2015). Because there are multiple bases
to support the jury’s verdict apart from Cella’s negligence, the MTA would
not be entitled to a new trial even if it could not be held liable for Cella’s
negligence.

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of the admission or exclusion of expert evidence, and his action is to
be sustained unless manifestly erroneous.” Salem v. U.S. Lines Co., 370
U.S. 31, 35 (1962). The MTA contends that the district court abused
that discretion because the jury needed expert testimony to evaluate
the choice to assign Ojeda a patrol car without a prisoner
compartment, the assignment of Cella as Ojeda’s partner, and the
failure to study backup response times.
“[C]auses of action in which the law predicates recovery upon
expert testimony” are “rare.” Id. “It is well settled that expert
testimony is unnecessary in cases where jurors are as capable of
comprehending the primary facts and of drawing correct conclusions
from them as are witnesses possessed of special or peculiar training.”
Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (internal
quotation marks omitted). We require expert evidence only when a
necessary element of the claim “would not be obvious to the lay
juror.” Id. Thus, we have held that expert testimony was required to
establish “the causal link between exposure to toxins and other
behavior and squamous cell carcinoma” for a Jones Act claim. Id. We
have also suggested that “special expertise” was necessary when a
claim involved “esoteric” injuries such as “dyscalculia and spelling
dyspraxia.” Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 59 (2d Cir.
1996) (discussing Claar v. Burlington N. R.R. Co., 29 F.3d 499 (9th Cir.
1994)). Conversely, we have held that expert testimony was
unnecessary in a dispute over whether “prolonged exposure to paint
fumes would cause headache, nausea, and dizziness.” Id. at 59-60.
The district court did not manifestly err in allowing this case to
be submitted to the jury without expert testimony. In Spokane & Inland
Empire R.R. Co. v. United States, the Supreme Court affirmed a jury’s

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verdict finding that the safety measures placed on a train were an
inadequate substitute for the statutorily required handholds and
grab-irons. 241 U.S. 344, 347-51 (1916). The railroad argued that the
jury should not be permitted to make a finding on that issue without
expert testimony. Id. at 351. The Supreme Court disagreed, holding
that “the question” of whether the train was adequately equipped
“was not one for experts and that the jury after hearing the testimony
and inspecting the openings were competent to determine the issue.”
Id. Likewise, the Supreme Court in Salem permitted a jury to find—
after hearing testimony and viewing photographs—that a shipowner
was negligent for “having failed to provide railings or other safety
devices” without the aid of expert testimony. 370 U.S. at 34 (internal
quotation marks omitted). Because “the potential danger was fairly
obvious and a jury should be perfectly competent to decide whether
the handholds furnished were sufficient to discharge the owner’s
duty to provide his seamen with a safe place to work,” the Supreme
Court held that the jury’s verdict “hardly require[d] expert
knowledge of naval architecture.” Id. at 36-37 (quoting Salem v. United
States, 293 F.2d 121, 126 (2d Cir. 1961) (Smith, J., dissenting)).
As in Salem, the “potential danger” of failing to provide Ojeda
with a prisoner compartment, a capable partner, or timely backup
was “fairly obvious.” Id. The jury in this case was equipped to
evaluate the MTA’s actions in sending Ojeda on patrol with Cella in
a vehicle lacking a prisoner compartment and without studying
backup response times. Those judgments are not the sort that we have
held requires expert knowledge. We will not reverse the jury’s verdict
in this case solely for lack of expert testimony.

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CONCLUSION
A different jury might have reached a different verdict in this
case. But in FELA cases “the role of the jury is significantly greater
than in common law negligence actions,” and its “right to pass upon
the question of the employer’s liability must be most liberally
viewed.” Gallose v. Long Island R.R. Co., 878 F.2d 80, 84 (2d Cir. 1989)
(internal quotation marks and alteration omitted). We may reverse
the denial of a motion for judgment notwithstanding the verdict only
if “the evidence is such that, without weighing the credibility of the
witnesses or otherwise considering the weight of the evidence, there
can be but one conclusion as to the verdict that reasonable men could
have reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).
Though the governmental function defense was available for
the MTA to assert, the MTA failed to show that the defense barred
liability in this case. Additionally, we cannot say that the evidence
supporting the jury’s verdict for Ojeda was legally insufficient. We
therefore AFFIRM the judgment of the district court.

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