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Domestic Violence Cases are Difficult, Particularly Where Children are Involved


In July 1996, after a prior order of protection expired, plaintiff obtained a second order of protection against her former boyfriend in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on her former boyfriend. At that time, plaintiff met two officers, the individuals assigned to the unit. Plaintiff later received a telephone call from one of the officers confirming that her former boyfriend had been served with the court order.

According to plaintiff, about a week later, her former boyfriend telephoned her at around 5:00 PM on a Friday evening and threatened to kill her. The former boyfriend had made various threats in the past — threats that prompted plaintiff to secure an order of protection — but plaintiff viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. A New York Criminal Lawyer said the plaintiff immediately left her apartment with her two young sons, planning to go to her grandmother’s house in the Bronx. On the way to her car, however, she stopped at a payphone and contacted the Domestic Violence Unit to alert the police to the latest threat by her former boyfriend. She contended that she spoke with one of the officers, who told her that she should return to her apartment and that the police would arrest her former boyfriend immediately.

After speaking to one of the officers, plaintiff returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether her former boyfriend had been located or arrested. The night passed without incident. A Queens Criminal Lawyer said the following day, a Saturday, plaintiff and her children remained in their apartment most of the day. At about 10:45 PM that evening, plaintiff stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by her former boyfriend brandishing a gun. He ushered her back into the apartment doorway and shot her two or three times injuring her face and arm. The two children witnessed the shooting but were not physically harmed. The former boyfriend then turned the gun on himself and committed suicide.

Plaintiff commenced this action against the City of New York claiming that, based on her telephone conversation with one of the officers, the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest her former boyfriend prior to the attack; and that its negligence was a proximate cause of the shooting.

Plaintiff also brought claims on behalf of the children, contending that the “special relationship” extended to them and that they could recover damages for negligent infliction of emotional distress because they were in the zone of danger at the time of the attack.

The case involves the provision of police protection, which is a classic governmental, rather than proprietary, function. That being so, the facts potentially implicate two separate but well-established grounds for a municipality to secure dismissal of a tort claim brought against it by a private citizen injured by a third party. The first relates to the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that “to sustain liability against a municipality, the duty breached must be more than that owed the public generally”. The courts have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties. Thus, in order to pursue her negligence action against the City in this case, plaintiffs were required to allege a special duty — which they attempted to do by contending that the telephone conversation with one of the officers created a special relationship.

The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that was potentially available to the City — the governmental function immunity defense. Although the State long-ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions. This limitation on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts. It further reflects a value judgment that, despite injury to a member of the public, the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for injury.

A public employee’s discretionary acts, conduct involving the exercise of reasoned judgment, may not result in the municipality’s liability even when the conduct is negligent. 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 alleged negligent act or omission involved the exercise of discretionary authority. Also, the 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.

As recently held by the court, when both of these doctrines are asserted in a negligence case, the rule that emerges is that “government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general”.

In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion.

Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach.

With the foregoing principles in mind, we turn to the special duty issue in this case in recognition of the fact that, if plaintiffs cannot overcome the threshold burden of demonstrating that defendant owed the requisite duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense.

To establish a special relationship, plaintiffs were required to show that there was:

“(1) an assumption by the municipality, through promises or actions, or 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”.

The “justifiable reliance” requirement is the most important factor for the court to consider, described as “critical”, because it “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury”.

Assuming, as we must, given the procedural posture of the case, that the telephone call between plaintiff and one of the officers occurred as plaintiff described, the officer’s statement did not create a special relationship. It was not reasonable for plaintiff to conclude, based on nothing more than the officer’s statement that the police were going to arrest her former boyfriend “immediately,” that she could relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police. The record indicates that the former boyfriend threatened plaintiff over the telephone — there is no indication that plaintiff knew where he was calling from or that she conveyed any information relating to his whereabouts to the police.

Thus, it would not have been reasonable for plaintiff to have relied on the police’s promise to arrest her former boyfriend “immediately” in a literal sense since his location had to be discovered. In fact, the record shows that plaintiff understood that the police would first have to find the former boyfriend before he could be arrested since she testified at trial that she did not call the officer who allegedly made the promise when she returned to her apartment because she believed that such officer would not be at the precinct but would be out looking for her former boyfriend. At best, since plaintiff had no reason to believe that the police knew where her former boyfriend was, the officer’s statement could reasonably be viewed only as a promise to look for the former boyfriend and arrest him if he was located. It was not reasonable for plaintiff to relax her vigilance based on this type of representation that was dependent on locating the former boyfriend.

Furthermore, plaintiff’s own statements concerning her expectations undercut the claim of justifiable reliance. Based on her prior experience with the Domestic Violence Unit, plaintiff testified that she expected the police to call her back to confirm the arrest — and she acknowledged that she received no such call prior to the attack (nor did she contact the precinct to inquire concerning the status of the search). Because plaintiff expected to receive confirmation that her former boyfriend had been taken into custody, it is difficult to reconcile her contention that she was nonetheless justified in relaxing her vigilance when more than a day passed with no word of the expected arrest.

Although, in a colloquial sense, people should be able to depend on the police to do what they say they are going to do — and no doubt the police have an obligation to attempt to fulfill that trust — it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim against a municipality in every situation where the police fall short of that aspiration. The element of justifiable reliance must be assessed through the prism of reasonableness and liability will not always extend to a municipality for injuries caused by the violent acts of a third party.

The court finds that plaintiffs’ proof was insufficient to establish a special relationship and demonstrate that the City owed them a special duty of care. There was a failure to establish a prima facie case. Having determined that the duty element was lacking, there is no occasion to address whether the City preserved its right to assert a defense of whether it could have avoided liability under the governmental function immunity defense on the rationale that the alleged negligence involved the exercise of discretionary authority.

Domestic violence is alarming especially when the lives of children may be at risk. For more information on how to deal with these matters, including issues involving battery, assault and sex crimes, consult with Stephen Bilkis & Associates. You will be advised by the best New York City Domestic Violence Lawyer or the best New York City Criminal Lawyer, among others.

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