New York Family Law Blog
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County, which granted the defendants’ motion for summary judgment dismissing the complaint.
A New York Family Lawyer said that the plaintiffs are members of an extended family who resided together in an apartment in Brooklyn. In 1996, a member of the family living in the apartment, was kidnapped by her former boyfriend. After several days, the boyfriend released the lady and threatened to kill her and her family if she did not resume their relationship. After her release, the New York City Police Department (hereinafter the NYPD) began providing 24-hour protection to the family at its residence. Approximately eight days later, the NYPD informed the family that it was discontinuing the 24-hour protection but would provide “special attention” to the family residence by hourly or half-hourly police visits.
Approximately 36 hours after the police implemented the “special attention” protection, Parker returned, held the family hostage for several hours, killed her and her grandmother, wounded several other family members, and eventually killed himself.
Generally, a New York Divorce Lawyer said that a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual. A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties. The elements of a special relationship are (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) the injured party’s justifiable reliance on the municipality’s affirmative undertaking.
A Nassau County Family Lawyer said the defendants established their prima facie entitlement to summary judgment dismissing the complaint. In opposition, the plaintiffs failed to raise a triable issue of fact as to their justifiable reliance on the defendants’ affirmative undertaking to provide them with protection. The element of reliance “provides the essential causative link between the `special duty’ assumed by the municipality and the alleged injury.
The plaintiffs were expressly told that the defendants would provide “special attention.” This “special attention” consisted of a police officer who would “walk by” or “drive by” the plaintiffs’ apartment building “from time to time” to “check on the apartment.” The NYPD roll-call reports and memo books demonstrated that one or two uniformed officers surveilled the plaintiffs’ apartment building every half hour or hour. The parties do not dispute that the NYPD provided “special attention.” Simply stated, the NYPD did exactly what it promised the plaintiffs that it would do by periodically going by the apartment and providing “special attention” to them.
Under the facts of this case, a special relationship existed, but only to the extent of the “special attention.” The dissent misapprehends the analytical construct of “reliance” by inexplicably considering it as a function of “outcome.” The reliance element is not to be viewed solely on the basis of whether or not the protection afforded the citizen was ultimately successful. Rather, reliance must be examined in the specific context of the nature of the affirmative duty undertaken. The tragic outcome cannot distract from the issues nor may it cloud the focus of our analysis.
A Staten Island Family Lawyer said thus, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.
The core issue is whether there are triable issues of fact which precluded the grant of the defendants’ motion for summary judgment dismissing the complaint.
The gravamen of the majority’s holding is that since the family members were aware that the defendant New York City Police Department (hereinafter NYPD) had withdrawn its around-the-clock protection, they did not justifiably rely on a police undertaking to protect them, such that there was no longer a special relationship as is required to form the basis of municipal liability to them. This conclusion is the result of issue determination rather than issue finding and is inappropriate on a motion for summary judgment.
There is no challenge to the conclusion that justifiable reliance provides the essential nexus between the duty assumed by the defendants and the injuries sustained by the family. It is also undisputed that the defendants initially concluded that the circumstances of the kidnapping and threats of harm by James Parker created such a foreseeable risk, that refusal of protection to the family would lead to tragedy.
This level of protection continued for eight days and then the NYPD informed the family that 24-hour protection would be discontinued and a lesser protocol of protection, termed “special attention” by the defendants, would be provided.
The imperative for 24-hour protection, however, is manifest in the record. James Parker had an extensive violent criminal record including the acts of kidnapping, assault with a baseball bat, and threats against the decedent and her family. Moreover, the NYPD considered James Parker “to be armed and dangerous”. In fact, the decedent had an order of protection against him. After violation of the order of protection, a warrant of arrest was issued.
In that regard, it is noted that the majority disagrees with my analysis of the justifiable reliance element of the special relationship test, and, more specifically, its application to the facts of this case. The majority, however, fails to articulate any basis for its finding that, as a matter of law, the family members did not justifiably rely upon the NYPD’s promise of “special attention.” In the majority’s view, the fact that the promised “special attention” was actually provided, negates any possibility that the family members may have justifiably relied on the NYPD’s promise of “special attention.” That reasoning, however, puts the cart before the horse. As the majority concedes, a special relationship did exist here, “but only to the extent of the `special attention’.” Whether or not the family members justifiably relied upon the affirmative duty undertaken by the NYPD to protect them, is an issue of fact. If it is determined that the family members did justifiably rely upon that undertaking, then the trier of fact will have to further determine whether the NYPD’s actions to protect the family members were reasonable under all of the circumstances. Contrary to the majority’s conclusion, submission of these issues to a jury will not impose a quasi-insurer’s liability upon the municipality.
It is ineluctable that an issue of fact exists as to whether the family was lulled into a false sense of security by the promise that they would receive “special attention” from the NYPD. The fact that the family was less justified in relying on the assurances of “special attention” than they had been in relying on the previously provided twenty-four hour a day protection, does not render their reliance unjustified as a matter of law.
There is evidence, furthermore, that the family relied on the NYPD’s promise of “special attention”. Most notably, the fact that the family members, knowing the threat of harm to be genuine, and aware that the level of protection to be provided by the police had been decreased, nevertheless took no actions on their own to protect themselves.
It is simplistic to state, in retrospect, that the family’s reliance on the promise of special attention was not justified, in light of the deadly events that followed. Whether the reliance was justified, however, must be measured as of the time of its existence. In this regard, it is noted that the NYPD, fully aware of the continuing danger posed by James Parker to the family, nevertheless ordered the 24 hour level of protection reduced to “special attention”.
Family cases should be referred to lawyers who are able and capable of addressing the sensitiveness of the issues involved. Here in Stephen Bilkis and Associates, our Nassau County Family Attorneys are here to give you an advice on the matter. For cases involving separation between spouses, you can also consult our Nassau County Divorce Lawyers.