Boland v. State of New York

Mercure, J. (concurring).

While concurring in result, because I disagree with my colleagues’ implicit conclusion that *246the special relationship and ministerial act doctrines are alternative theories of liability, I am required to write separately. In my view, these so-called "doctrines” are neither "alternative” nor are they "theories of liability”. To the contrary, they are nothing more than factual theories advanced in avoidance of the alternative grounds raised by the State in support of its defense of sovereign immunity. The distinction is critical to a proper determination of the issue of…