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Plaintiff Sues Police for not Enforcing Order of Protection


On February 13, 1992, a woman pulled up to an area in Nassau County where she saw police officers working a car accident. She got out of her car and screamed for them to help her. She advised them that her husband was in her car with a knife and he was threatening to hurt her. She advised that she had an active order of protection against him. She showed the officers her order and asked them to help. The officers told her that they would take care of him after she left. However, a New York Criminal Lawyer said they failed to arrest her husband for the violation of the order of protection.

The next morning as she prepared to leave for work for the day, she exited her home. Her husband was hiding outside of the residence when she walked out. He attacked her with a machete causing serious bodily harm to her. She contends that if the police officers had done their duty and enforced the order of protection, she would not have been injured because her husband would have been in jail.

She filed a civil suit against the county where the officers worked for personal injury damages. The county maintained that they could only be partially responsible for the injuries that occurred to her because her husband was more culpable than they were. Under New York law, CPLR article 16, a joint tortfeasor’s liability for non-economic losses is proportional upon proof that it is 50% or less culpable for the personal injury. There are exemptions to this rule, domestic violence is not one of them. The court determined that in order to waive this rule, domestic violence would have to be added as one of the exemptions. The court just was not ready to create all new case law that would include domestic violence cases in the exemptions. Prior to this case being appealed, the victim had been awarded $1.5 million dollars by a jury. The County challenged the trial court’s ruling that barred article 16 exemptions from the case. The trial court had determined that there was a domestic violence exemption to article 16 and that apportionment did not apply because the case involved an intentional tort. The appellate division reversed the judgment holding that none of the exemptions applied. The appellate court overturned the verdict and ordered a new trial.

The victim appealed that decision. She asks that the Appellate Division examine the case and determine if the Division erred as a matter of law in granting the new trial. The court decided that it was. The court rejected the trial court’s reasoning that article 16 does not apply in cases where negligent enforcement of orders of protection occurred. A Long Island Criminal Lawyer said the concept is there because of public policy concerns. There is strong public policy encouraging strict enforcement of orders of protection. Since the language of the statute nor its history includes language including domestic violence, the victim is asking the court to create a new exemption that they are not permitted to do. It is the job of the legislature to create policy choices. The court also determined that prior to the creation of article 16, defendants who were liable for only a small percentage of damages were paying a disproportionate share of the damages awards. The reason for creating article 16 which provided a percentage reward according to the amount of liability that the person held, was to even out the monetary awards to match the amount of liability. Ultimately, the county maintained that they were less than 50% liable. A Suffolk County Criminal Lawyer said the appeals court ordered a new trial.

Since, Stephen Bilkis & Associates Domestic Violence Lawyers are well versed in the handling of violent cases; we can offer the client the amount of representation that they need. We have convenient offices throughout New York and the Metropolitan area. Being able to defend the victim’s interest

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