74 N.Y.2d 251 | NY | 1989
Lead Opinion
OPINION OF THE COURT
We have only recently reaffirmed the well-settled rule that in order for liability to be imposed upon a municipality for the failure to provide police protection to a particular individual, there must be proof of a "special relationship” between that person and the municipality (see, Cuffy v City of New York, 69 NY2d 255). This rule is based upon sound policy considerations which justify its existence, explain its evolution and demonstrate its appropriate application to the facts of this case.
I
The following salient facts as revealed by the record are undisputed. On April 20, 1984, as she was entering her car in a drug store parking lot, plaintiff, Deborah Kircher, was accosted by one Brian Blanco, assaulted and pulled into the car by Blanco, who then sped off. These events were witnessed by Karen Allen and Richard Skinner, who heard plaintiff’s screams as they were entering their car which was parked in front of the Kircher vehicle. As that car sped off, Allen and Skinner gave chase. Skinner lost sight of plaintiff’s car a block or so from the parking lot, but in trying to relocate it came
Meanwhile, Blanco had driven plaintiff to the Town of Gerry, New York, where he repeatedly raped and assaulted her, fracturing her larynx and inflicting numerous other injuries. After brutalizing her, Blanco locked plaintiff in the trunk of her car from which she was rescued some 12 hours later. In her affidavit opposing summary judgment, plaintiff states that she observed Skinner and Allen in the parking lot and during their rescue attempt but that at some point she realized "the automobile being operated by Mr. Skinner was no longer in pursuit of my vehicle”. Additionally, she states that throughout her abduction her assailant operated her automobile "on main thoroughfares in heavy traffic”.
Plaintiff commenced separate actions against the City of Jamestown and Carlson, later consolidated by Supreme Court, charging that Carlson was negligent in failing to render assistance at the time of the incident and that the City was vicariously liable for Carlson’s negligent conduct. Defendants moved to dismiss the complaints for failure to state a cause of action or, alternatively, for summary judgment, contending that plaintiff had not demonstrated the existence of a "special relationship” between herself and the municipality.
Supreme Court denied defendants’ motion. Relying heavily on this court’s decision in Crosland v New York City Tr. Auth. (68 NY2d 165),
The Appellate Division reversed and granted defendants’ motion for summary judgment. The court concluded that plaintiffs mere status as a potential crime victim did not give rise to a "special relationship” between herself and the municipality such as would permit the imposition of liability against defendants. The court noted further that the evidence did not establish any direct contact between plaintiff and defendants, that she relied to her detriment on assurances provided by defendants, or that defendants’ affirmative conduct created a duty to act in her behalf. Thus, the court held that the requisite "special relationship” had not been established and commented that the "failure to respond to the report of possible criminal activity or to offer assistance in a situation arguably requiring police intervention amounts to a failure to provide police protection to the general public and is within the scope of governmental immunity” (142 AD2d 979, 980). We granted leave to appeal and now affirm.
II
The decisions of this court requiring the existence of a "special relationship” between the claimant and the municipality before the latter may be held liable to the former for the negligent exercise of a governmental function such as providing police protection are legion (see, e.g., Bonner v City of New York, 73 NY2d 930; Marilyn S. v City of New York, 73 NY2d 910, affg for reasons stated below 134 AD2d 583; Cuffy v City of New York, 69 NY2d 255; Sorichetti v City of New York, 65 NY2d 461; Yearwood v Town of Brighton, 64 NY2d 667, affg for reasons stated below 101 AD2d 498; Vitale v City of
Nevertheless, where a municipality voluntarily undertakes to act on behalf of a particular citizen who detrimentally relies on an illusory promise of protection offered by the municipality, we have permitted liability because in such cases the municipality has by its conduct determined how its resources are to be allocated in respect to that circumstance and has thereby created a "special relationship” with the individual seeking protection. Correspondingly, it has limited the class of persons to whom it owes a duty of protection. In such circumstances, the municipality’s liability is not that of an insurer for failing to protect from harm a member of the general public, but rather liability is based upon the municipality’s own affirmative conduct which, having induced the citizen’s reasonable reliance, must be considered to have progressed to a point after which the failure to provide the promised protection will result not " 'merely in withholding a benefit, but positively or actively in working an injury’ ” (see, De Long v County of Erie, 60 NY2d 296, 305, supra; Moch Co. v Rensselaer Water Co., 247 NY, at 167, supra).
The requirement of direct contact, which is closely related to the element of reliance, serves to rationally limit the class of persons to whom the municipality’s duty of protection runs and exists "as a natural corollary of the need to show a ’special relationship’ between the claimant and the municipality” (Cuffy v City of New York, 69 NY2d, at 261, supra). Generally, this contact must be between the injured party and the municipality. Though we have shown some flexibility in applying this requirement — for example permitting contact between the mother of an injured infant and the police to substitute for contact directly between the police and the infant (see, Sorichetti v City of New York, 65 NY2d 461, supra) —we conclude this requirement is not satisfied here where Skinner and Allen, although admittedly acting solely out of a sense of compassion, were complete strangers to plaintiff and plaintiff, in turn, was completely unaware of the assurances given her would-be rescuers (cf., Cuffy v City of New York, 69 NY2d 255, supra). It must be remembered that in Sorichetti there was an outstanding judicial order of protection signifying the municipality’s prior involvement in the domestic turmoil that ultimately led to the infant’s injuries, thus providing a justification for relaxing the direct contact re
In addressing the reliance element of the four-part test, we have very recently stressed that "the injured party’s reliance is as critical in establishing the existence of a 'special relationship’ as is the municipality’s voluntary affirmative undertaking of a duty to act” because it is that element that "provides the essential causative link between the 'special duty’ assumed by the municipality and the alleged injury” (Cuffy v City of New York, 69 NY2d, at 261, supra). It is readily apparent that this requirement is not satisfied on these facts since the helpless and isolated plaintiff could not even communicate with the police, much less rely on any promise of protection the police might have offered. Yet, although plaintiff’s failure to rely can be directly attributed to her dire circumstances, this does not, as the dissenters urge, provide a justification for ignoring the reliance requirement altogether. While we would agree that no rule should be so unyielding that it is mechanically applied without regard for its underlying purpose, a rule is simply not a rule if it can be summarily dismissed in order to achieve a desired result not in keeping with that purpose. Thus, contrary to the assertion of Judge Bellacosa, proof of the reliance of Skinner and Allen cannot "be transferred to the plaintiff’s benefit” (dissenting opn, at 265) for the obvious reason that proof of their reliance does not satisfy the policy concern underlying the reliance requirement —providing the "essential causative link” between the municipality and the alleged injury (Cuffy v City of New York, 69 NY2d, at 261, supra; see, Helman v County of Warren, 67 NY2d 799, affg for reasons stated below 111 AD2d 560).
We cannot conclude, as does Judge Bellacosa, that the facts of this case demonstrate a "clear, continuous causal link” (dissenting opn, at 265) between the conduct of Officer Carlson
Requiring that there be such reliance is consistent with the purpose of the special duty rule to place controllable limits on the scope of the municipality’s duty of protection and to prevent the exception from swallowing the general rule of governmental immunity (see, Helman v County of Warren, 111 AD2d, at 562, supra). Absent this requirement, a municipality would be exposed to liability every time one of its citizens was victimized by crime and the municipality failed to take appropriate action although notified of the incident — so vast an expansion of the duty of protection should not emanate from the judicial branch. "Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility” (Riss v City of New York, 22 NY2d, at 582, supra).
We note that it is not open to doubt that had plaintiff based her negligence action on the failure of the municipality to prevent the crime in the first instance by stationing police officers in the parking lot where she was assaulted, recovery would be precluded as such action would directly challenge the municipality’s allocation of scarce police resources for the protection of the general public (see, Crosland v New York City Tr. Auth., 68 NY2d 165, 169, supra; Weiner v Metropolitan Transp. Auth., 55 NY2d, at 181, supra; Riss v City of New York, 22 NY2d 579, supra). A different result is not indicated
Accordingly, the order of the Appellate Division should be affirmed, with costs.
. Plaintiff similarly relies heavily upon Crosland in her argument to us.
. Another factor explaining our decision in Sorichetti was the police department’s specific "knowledge of Frank Sorichetti’s violent history, gained through and verified both by its actual dealings with him, the existence of the order of protection, and its knowledge of the specific situation in which the infant had been placed” (Sorichetti v City of New York, 65 NY2d 461, 469).
Dissenting Opinion
(dissenting). I would reverse and deny summary judgment.
In De Long v County of Erie (60 NY2d 296), the police negligently failed to respond to a 911 call after stating that the call would be answered; as a result, plaintiffs decedent was stabbed to death by an intruder. This court affirmed a judgment in favor of plaintiff. In this case, the police officer stated that he would call in the report of an ongoing crime. He negligently failed to do so; as a result, plaintiffs abductor made his escape and repeatedly raped and beat her. The difference between the two cases, the majority says, is that here there was no direct contact between plaintiff and the police as there was in De Long, and that there was no reliance by plaintiff on the assurances of aid. The majority finds the distinction critical although, concededly, "[pjlaintiff, by virtue of her unfortunate circumstances, could not communicate with the police and thus obviously could not rely on their assurances of assistance.” (Majority opn, at 257.) There is no question that plaintiffs would-be rescuers did contact police and, in reliance on the police officer’s actions, stopped their attempts to help plaintiff. In my opinion, there is no reasoned basis for distinguishing De Long and denying recovery solely because plaintiff did not herself contact police or rely on their assurances; nor do the policy reasons underlying our decisions command this result.
Nor, in my view, can there be a rational policy reason for differentiating this case from De Long. In both cases the police themselves had undertaken the duty to act. Here, as in De Long, the police stated that they would respond to a call. The decision to act was made. Thus, neither required a governmental determination of how police resources should be allocated (see, majority opn, at 256). The sole policy basis for the distinction offered by the majority is that the "requirement of direct contact, which is closely related to the element of reliance, serves to rationally limit the class of persons to whom the municipality’s duty of protection runs” (majority opn, at 257). In short, the reason for the limitation is the limitation itself.
We have, as the majority notes, applied the requirement of direct contact with flexibility (majority opn, at 257). Thus, in Sorichetti v City of New York (65 NY2d 461) we allowed an infant plaintiff to recover for injuries, even though the assurances of police aid were given to her mother and there could have been no reliance by the infant plaintiff as she was in the control of her assailant. Why the majority does not follow Sorichetti here, where the victim was in the hands of her abductor and, "by virtue of her unfortunate circumstances, could not communicate with the police” (majority opn, at 257), is not made clear. Surely, the reason offered — limiting "the
. The majority asserts that there is insufficient evidence of a causal link because it can never be known whether absent the negligence plaintiff would not have been injured (see, majority opn, at 259). Obviously, in a case of failure to act we can never definitively answer this causation question (see, e.g., De Long v County of Erie, 60 NY2d 296). There is, I believe, sufficient evidence to raise a factual question of causation.
. The majority states there is a "general rule of governmental immunity” (majority opn, at 259) and that it is up to the Legislature to act if there is to be liability (see, id., at 259). The "special duty” rule is, however, a court-made rule limiting the legislative determination that there generally should be governmental liability (see, Court of Claims Act § 8). It is up to the court to alter its own rules if the policy justifications underlying them are not furthered.
Dissenting Opinion
(dissenting). I would reinstate plaintiffs’ law-
suit. Plaintiff Mrs. Kircher, the victim of a broad daylight abduction, a harrowing car ride and kidnapping in the countryside, and brutal beating and rape, should not have her personal injury case and that of her husband thrown out of court without a trial because of the inflexible application of catechetical rules. The court has said only recently and the majority acknowledges that it should not apply these very same rules in an "overly rigid manner”. I believe that approach is particularly wise and fair in a case such as this which does not involve allocation of police resources to prevent future harms or crimes, but rather failure to perform a duty as to a particular ongoing crime and rescue mission.
For purposes of resisting the defendant City’s and defendant police officer’s motion for summary judgment, Mrs. Kircher and her husband presented a more than sufficient basis for being permitted to try to establish a "special relationship” with the municipality and its employee, imposing on them a duty of care and of assistance in the extraordinary circumstances of this incident. There was direct uninterrupted contact between the police officer and the victim’s would-be rescuers, to whom the victim screamed for help at the very moment of her abduction in the shopping parking lot. Those persons reacted, and then acted solely on the victim’s behalf when they gave chase in their own car and when they interrupted their continued efforts to rescue her by reporting the incident in great detail to a police officer in a radio car. The victim not only screamed to those persons but knew they saw and heard her as she saw them giving chase in their own car. She surely relied on their expected imminent help and any they might get for her from appropriate officials whose duty it would be to aid and apprehend in such circumstances.
I dissent, vote to reverse the Appellate Division’s order granting summary judgment to defendants, and would give plaintiffs their day in court at a trial.
Early in the afternoon on April 20, 1984, plaintiff, Deborah Kircher, was grabbed as she left a Jamestown drug store. A
The summary judgment record documents that Police Officer Carlson did absolutely nothing with respect to the citizen-reported ongoing crime. Since no official interventive efforts were even tried, and because no other police agencies or officials were notified or summoned into action, the abductor
Mrs. Kircher and her husband commenced this civil action for damages, alleging that Officer Carlson was negligent in failing to save her from the worst part of this unnecessarily prolonged and exacerbated horrifying experience when doing so would have been so simple and so intrinsic to his ordinary, official course duties. The additional consequences to her, within the details and facts of this case, were reasonably foreseeable, not "speculative” as characterized by the majority. Indeed, the aggravation of her additional, more severe injuries are directly and causally related to the inaction of the police officer, or so a jury could find. The City of Jamestown is alleged to be vicariously responsible for the conduct of its employee, Officer Carlson.
The bromide that a municipality cannot be held liable for negligence in the performance of a governmental function, including its failure to provide police protection to individual citizens, unless a special relationship existed between the municipality and the injured party, should not rescue the defendants in this case (see, De Long v County of Erie, 60 NY2d 296, 314; Riss v City of New York, 22 NY2d 579). That irony would be too bitter. There was a special relationship here. To establish one, a plaintiff must prove: (1) an assumption by the municipality, through the promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on 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 (Cuffy v City of New York, 69 NY2d 255, 260). It is unnecessarily rigid on the law and on the facts to apply recent precedents to hold, as a matter of law, that there was no direct contact between plaintiff and Officer Carlson, and that as a result, plaintiff could not and did not rely on the officer’s promise of assistance.
Sorichetti v City of New York (65 NY2d 461) and Cuffy v City of New York (69 NY2d 255, supra) support the prudent and fair flexibility of approach to the satisfaction of the "direct contact” requirement. In Sorichetti (supra), the court held that a special relationship existed not only between the defendant City and the plaintiff mother, who had actually contacted the police concerning threats made to her by her estranged husband in violation of an order of protection, but that such relationship also arose between the City and the child-victim on whose behalf the mother had made the police contact, despite the child’s lack of direct contact with law enforcement officials herself. Thus, the court already recognizes an exception in the long litany of precedents cited in favor of black letter law; it then strains to distinguish that precedent, unsuccessfully as far as I can see.
In Cuffy (supra), plaintiffs alleged that the police had a special duty to protect them because the police promised the husband and father protection for his family, after he alerted the police of threats made by plaintiffs’ downstairs tenants. The case was allowed to go to trial. On appeal from the jury verdict in favor of plaintiffs, we held that although it was Mr. Cuffy, and not Mrs. Cuffy or her son Cyril, who had direct contact with the police, the police promise to act was deemed to run to them because it was their safety that prompted Mr. Cuffy to solicit the aid of the police, and it was their safety the officer had in mind when he promised to provide assistance (Cuffy v City of New York, 69 NY2d, at 262, supra).
Using language that could have anticipated the instant case, we expressed our reluctance to apply the direct contact requirement "in an overly rigid manner”, and noted that its proper application should depend on the particular circum
In the instant case, the policy concerns which gave rise to the direct contact requirement are not undermined or implicated. Plaintiffs are not seeking to hold defendants liable for failing to protect a member of the general public from a future unknown criminal act (Weiner v Metropolitan Transp. Auth., 55 NY2d 175). Nor are plaintiffs claiming that there should have been police assigned to a place where a crime was likely to occur or even that the police were obligated to prevent the abduction itself (Steitz v City of Beacon, 295 NY 51). In this case, the victim made direct contact with the only persons she had access to, who in turn made direct contemporaneous contact with the police about a vicious crime in progress. The hopes of the victim and her surrogate rescuers to stop the crime and prevent further harm to this particular person were dashed by the nonfeasance of the public employee, not by failure to allocate and deploy scarce municipal resources for the general public. The victim plaintiff here was indisputably set apart from the at-large community of Jamestown. She was not a possible in futuro victim of a crime. She was already in the throes of ferocious ongoing crimes. No one of the other cases has that quality or element. Thus, there can be no "rational basis” for immunizing the City’s duty — and that of its officer — to act here, by mechanical application of catechetical rules — without in the process distorting the reasons for which those rules exist in the first place.
Indeed, the policy impulses favor plaintiffs’ position in this case. The law of torts has traditionally recognized these interwoven goals: spreading the risk of loss, deterring bad conduct and encouraging good conduct (Prosser and Keeton, Torts § 1, at 6-7 [5th ed]). The latter goal is undermined by the solidification of a rule of municipal immunity from liability erected on a new privity doctrine of undeviating personal detrimental reliance. The relentless injustice of a rule so rigidly adhered to is further exemplified by another tragic case involving the identical issue in which the Appellate
On a different approach, the cramped approach in this case should be contrasted to the corresponding course marked in our criminal jurisprudence recently, relaxing an overly restrictive black letter rule in order to reflect a more realistic understanding and application of the underlying reason for a rule’s existence (see, People v Blasich, 73 NY2d 673, 680-681; see also, Wood v Duff-Gordon, 222 NY 88, 91). Moreover, wooden application of checklist-type criteria is a throwback to the reign of a resuscitated privity doctrine, which we have struggled so long and so hard to deflate in recognition of the concededly more difficult, but far fairer, path to decision— hard, individualized analysis (see, e.g., MacPherson v Buick Motor Co., 217 NY 382; Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 422-424).
Defendants argue also that, even if plaintiff could satisfy the direct contact requirement, the element of the rule for plaintiff victim herself to have relied on the officer’s assurance of assistance is lacking because she was not aware of the officer’s promise to act. This argument is equally unpersuasive and inapplicable.
In Sorichetti, the victim’s unawareness of the promise of
This case presents an even stronger case of imputed reliance in that context than in Sorichetti. Here, the victim herself specifically alerted Skinner and Allen to her desperate circumstance. Humanly, she could do nothing more than rely on them to come to her aid as civilians and to get official help; her real reliance was fortified by her own observation of them giving chase through the streets of Jamestown.
Sorichetti’s realistic and fair relaxation of the reliance requirement in an appropriate case was in no way displaced by Cuffy but, rather, fortified. In Cuffy, the court held that, notwithstanding the satisfaction of the direct contact requirement, Eleanor and Cyril’s recovery was barred because their injuries did not result from a justifiable reliance on the promise of police protection. The police had promised to act "first thing in the morning”. The trial testimony established that plaintiffs remained in the house of their own free will all day, even after they knew the police had failed to arrest the tenants. The difference from this victim’s circumstance is like night and day. Mrs. Kircher was unabatedly relying on her rescuers in all respects during a continuing, contemporaneous abduction. She knew they were trying to save her with or without official help. This victim, unlike the Cuffys, was a captive who could not escape the clear, present, continuing, and reported danger without outside intervention. The Cuffy decision was even after trial, not on summary judgment as here.
A few comments about Helman v County of Warren (67 NY2d 799, affg 111 AD2d 560) are necessary. It does not compel a result contrary to that which I urge because, on careful examination and understanding of that case, it instead supports the victim’s position here. In Helman, plaintiff, whose business was destroyed by fire, alleged that the damage was caused by the County’s failure to respond to a neighbor’s self-initiated fire distress call to 911. Plaintiff argued that a special relationship existed between himself and the municipality by virtue of his implied agency relationship with his neighbor, who had direct contact with 911 and who relied
In any event, the Helman plaintiff was physically able to call 911 of his own accord. He was not in a position where he was forced to rely solely on others for help; he did not expressly request his neighbor’s help; and he was completely unaware, at the time, of her attempted assistance. In the instant case, plaintiff’s desperate situation deprived her of any chance or opportunity to request police assistance for herself. She personally communicated in the only way she could to and through Skinner and Allen, and as best she could in the terror of the moment. They saw, they heard, they gave chase; and she screamed, she saw and, no doubt, she hoped, prayed and relied that they would succeed in their rescue attempt. To say as a matter of law that they were not her agents within our special duty, municipal-immunity-from-liability rules and within the reasons which gave birth to those rules just makes no common human sense and no good law.
Frankly, as to Helman, though I believe it unnecessary to do so, I would, to the extent the adopted writing of the Appellate Division may be read or applied overly broadly and inflexibly, prune it back and confine it to its precise factual boundaries and ratio decidendi.
In sum, there is no legal or policy justification to snatch from these plaintiffs their day in court with an opportunity to prove that these defendants should not be shielded from liability for failing to do their official duty, no less to offer the decent human helping hand that Skinner and Allen extended (Crosland v New York City Tr. Auth., 68 NY2d 165, 170). In another day and in a not unrelated human drama, Judge Cardozo uttered this unforgettable paragraph for a unanimous court: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the
No less relief should be given in the instant case where the court — not a jury — grants absolution to gross municipal malfeasance. While the facts of this case are horrifying enough, the law principles can be applied coldly and analytically to reach the correct and just result — reversal and denial of summary judgment to defendants.
Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur with Judge Alexander; Judges Hancock, Jr., and Bellacosa dissent and vote to reverse in separate opinions.
Order affirmed, with costs.