MUNICIPAL LIABILITY -- DOMESTIC VIOLENCE -- JUSTIFIABLE RELIANCE
DECEDENT'S JUSTIFIABLE RELIANCE ON POLICE PROTECTION CONTRIBUTED TO FORMING
A SPECIAL RELATIONSHIP BETWEEN THE DECEDENT AND THE MUNICIPALITY.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
Plaintiff commenced an action to recover damages for decedent's death.
Plaintiff claimed that police department failed to provide adequate protection
after it had been directly notified that decedent's ex-husband violated
an order of protection. The police department moved for summary judgment.
The Supreme Court denied the motion. It found that an order of protection
satisfies proof of an affirmative duty to act and that there were sufficient
questions of fact relating to the reasonableness of the police officers'
actions. The Appellate Division reversed holding that the defendants did
not owe a special duty to the decedent. Plaintiff appealed.
ISSUE & DISPOSITION
Did the existence of an order of protection, the extended contact between
the police and decedent, and the decedent's justifiable reliance on the
officer's affirmative undertaking on her behalf, serve to establish a special
relationship between the decedent and the municipality?
Yes, a special relationship between the police department and the decedent
arose from the circumstances that existed.
Cases Cited by the Court
Merced v. City of New York, 75 N.Y.2d 798 (N.Y. 1990).
Kircher v. City of Jamestown, 74 N.Y.2d 251 (N.Y. 1989).
Cuffy v. City of New York, 69 N.Y.2d 255 (N.Y. 1987).
Sorichetti v. City of New York, 65 N.Y.2d 461 (N.Y. 1985).
Riss v. City of New York, 22 N.Y.2d 579 (N.Y. 1968).
Other Sources Cited by the Court
Coffman v. Wilson Police Dep't, 739 F. Supp. 257 (E.D. Pa. 1990).
Robinson v. San Antonio, 727 S.W.2d 40 (Tex. Ct. App. 1987).
Simpson's Food Fair, Inc. v. Evansville., 272 N.E.2d 871 (Ind. App.
State of the Law Before Mastroianni
A municipality generally may not be held liable for injuries resulting
from a failure to provide police protection. See Kircher v. City of
, 74 N.Y.2d 251, 256 (N.Y. 1989); Cuffy v. City of New
, 69 N.Y.2d 255, 260 (N.Y. 1987).
The Court of Appeals has,
however, recognized an exception to this rule and upheld tort claims when
a "special relationship" exists between the municipality and the claimant.
, 69 N.Y.2d at 260.
The "special relationship" is created
when the following elements are present:
(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) 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.
In cases involving alleged police negligence due to a failure to provide
protection after having been notified of a violation of a protective order,
the Court of Appeals has held that a "special relationship" may exist giving
rise to municipal liability. See, e.g., Sorichetti v. City of New York,
65 N.Y.2d 461, 469-70 (N.Y. 1985). However, the Sorichetti
court made clear that "[t]he fact that an injury occurs because of a violation
of an order of protection does not in itself create municipal liability."
Id. at 470.
Prior to the Mastroianni decision, the New York Court of Appeals
employed a stricter standard for determining the "justifiable reliance"
needed to establish a "special relationship." The Cuffy court indicated
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. That element provides the essential causative
link between the "special duty" assumed by the municipality and the alleged
injury." Cuffy, 69 N.Y.2d at 261. Furthermore, the Court asserted
that at "the heart of most of these 'special duty' cases is the unfairness
that the courts have perceived in precluding recovery when a municipality's
voluntary undertaking has lulled the injured party into a false sense of
security and has thereby induced [her] either to relax [her] own vigilance
or to forego other available avenues of protection." Id.
Effect of Mastroianni on Current Law
decision relaxes the requirements necessary to prove
justifiable reliance on police protection. In Cuffy
, the victims
could not recover from the municipality because they knew the police were
not present, even though the police assured them of their safety. However,
court indicates that the expectation of the party
seeking protection, and not the physical location of the police, is the
deciding factor in creating justifiable reliance. Thus, this ruling makes
it easier to recover from a municipality.
The court leaves open the question of what other actions might suffice
to create justifiable reliance on police protection. The Mastroianni
court states that the existence of an order of protection, standing alone,
will not suffice to create justifiable reliance. Mastroianni
para. 15. However, it is not clear how much more the municipality must
do or say to create a justifiable reliance on police protection. If the
police in this case had left without saying that they would "do whatever
they could," would the court have found the victim's reliance on police
protection justified based only on the fact that the officers believed
the order had in fact been broken? If the police had uttered the phrase
we'll do "whatever we can," but erroneously had not believed that the order
had been broken, would the court have found the requisite reliance? The
flexible standard the court espouses leaves these issues undecided.
Survey of the Law in Other Jurisdictions
Courts in many states have adopted the rule that there can be no liability
on the part of a municipality for its failure to provide police protection.
Historically, courts have based the denial of municipal liability on a
lack of public duty to individuals. Simpson's Food Fair, Inc. v. Evansville.
272 N.E.2d 871 (Ind. App. 1971). A duty to supply protection to any particular
individual exists only when a "special relationship" arises.
State courts vary in their standards for finding a "special relationship."
For instance, a Texas court granted summary judgment in favor of a municipality
in an action by a mother alleging that her daughter's death at the hands
of her former husband was a result of police failure to arrest the husband
and enforce a protective order. Robinson v. San Antonio, 727 S.W.2d
40 (Tex. Ct. App. 1987). In that case, Texas government policy required
that an arrest for violation of protective order only occur when the offense
was committed in a police officer's presence or view. Id.
On the other hand, Pennsylvania courts use a standard for establishing
a "special relationship" more similar to the New York rule. In Coffman
v. Wilson Police Dep't, 739 F. Supp. 257 (E.D. Pa. 1990), the Federal
District Court applied Pennsylvania law and found that a "special relationship"
existed between a victim of spousal abuse and the municipality. In that
case, the victim had a restraining order to prevent further abuse by her
husband, and the police failed to respond to repeated complaints. Because
the order stated that the police "shall" enforce the order, it created
a property interest in police enforcement in favor of the victim. Id.
Andrew I. Cohen, '99
Michael Graziano '99
Emmy B. Hackett, '98
Anita J. Lee, '98
Kelly M. Mann '98
Charlotte G. Thebaud, '99