De Long v. Erie County

• Decision Date: 01 November 1983
• Citation: 60 N.Y.2d 296,469 N.Y.S.2d 611,457 N.E.2d 717
• Parties: , 457 N.E.2d 717 Dennis S. DE LONG, Individually and as Administrator of the Estate of Amalia De Long, Deceased, Respondent, v. COUNTY OF ERIE et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 611

469 N.Y.S.2d 611

60 N.Y.2d 296, 457 N.E.2d 717

Dennis S. DE LONG, Individually and as Administrator of the Estate of Amalia De Long, Deceased, Respondent, v. COUNTY OF ERIE et al., Appellants.

Court of Appeals of New York.

Nov. 1, 1983.

John J. Heffernan and Peter M. Kooshoian, Buffalo, for County of Erie, appellant.

John J. Naples, Corp. Counsel, Buffalo (Carl Tronolone, Buffalo, of counsel), for City of Buffalo, appellant.

Philip H. Magner, Jr., Buffalo, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

In this suit for damages brought by the family and estate of a woman killed by a burglar, a jury found the City of Buffalo and the County of Erie liable for negligent processing of and response to the victim's call for emergency assistance made on the special 911 number established and serviced by the defendants. The Appellate Division 89 A.D.2d 376, 455 N.Y.S.2d 887 affirmed the judgment with two Judges dissenting and the defendants have appealed.

Two primary issues are presented on the appeal. First, whether by creating the special service, accepting the call for emergency assistance and assuring the caller that help was on the way, the municipal agencies may be said to have established a special relationship with and duty to her, sufficient to hold them liable for negligently directing the police patrol cars to the wrong locality and taking no further action when the responding officers reported no such address as that given. Second, whether the trial court erred in permitting expert testimony concerning the monetary value of a housewife's services on the issue of damages.

In October, 1976 the decedent, Amalia De Long, resided with her husband and three small children in Kenmore, a village adjacent to the City of Buffalo. Her home [457 N.E.2d 719] at 319 Victoria Boulevard was located approximately 1,300 feet from the Kenmore Police Department. One of her neighbors was a captain in that department.

On the morning of October 25 she telephoned for emergency police assistance by dialing 911. At 9:29 her call was answered by a complaint writer employed by Erie County to respond to such requests. The call, lasting approximately 14 seconds, was recorded in its entirety as follows:

Caller: "Police?"

Complaint Writer: "911."

Caller: "Police, please come, 319 Victoria right away."

Complaint Writer: "What's wrong?"

* * *

* * *

Caller: "I heard a burglar; I saw his face in the back; he was trying to break in the house; please come right away."

Complaint Writer: "Okay, right away."

Caller: "Okay."

The complaint writer erroneously reported the address as 219 Victoria, and mistakenly assumed that the call had originated in Buffalo because he knew there was a Victoria Avenue in the city. Accordingly, after stamping the complaint card "flash" to indicate its high priority, he placed it on a conveyor belt which ran through a glass partition to the radio dispatcher for the Buffalo Police Department. At 9:30 the dispatcher broadcast a report of a burglary in progress to patrol cars in the vicinity of Victoria Avenue in the city. Three minutes later the officers who had responded to the call informed the dispatcher that there was no such address and that the highest number on Victoria was 195. At 9:34 the dispatcher "cleared the call", in effect telling the officers at the scene to disregard it. The dispatcher himself took no further action on the call.

At approximately 9:42 Mrs. De Long was seen running from her house, unclothed and bleeding profusely. She collapsed on the sidewalk in front of her home. A neighbor called the Kenmore Police and within a minute a police car responded--a few minutes later paramedics arrived. However by 9:53 she displayed no vital signs. An autopsy revealed that she had been stabbed several times and had died from loss of blood.

After filing a notice of claim against the city and the county, the decedent's husband commenced an action seeking damages for wrongful death and conscious pain and suffering.

At the trial it was shown that prior to 1975 the City of Buffalo had adopted the 911 number as the one to call for emergency services, including police and fire protection. At that time a person dialing the number within the city would immediately be connected with the Buffalo Police Department where a complaint writer would take the information and give it to a radio dispatcher who in turn would contact the appropriate patrol cars or other emergency vehicles. The complaint writers, originally police officers and later mostly civilians, together with the dispatchers were trained and supervised by a lieutenant or acting lieutenant from the Buffalo Police Department. In March of 1975 Erie County formed a new agency known as Central Police Services which took over the complaint writing function from the city and extended the 911 services to several communities beyond the city limits, including the Village of Kenmore. Thus in 1975 and 1976 the telephone directory for Erie County listed 911 as the emergency number for the "local police".

Under the system adopted by the county, however, a 911 call made within the City of Buffalo or the extended area would not automatically connect the caller with the police department servicing the caller's area. Instead the call would go to the Center for Emergency Services which, pursuant to an agreement with the city, was located in the old 911 room in the Buffalo Police Department headquarters. The stated purpose of the center was to "accept telephone requests for emergency services for all Public Safety Agencies within the service area of the Center, and relay, transfer, or forward such requests to the Public Safety Agency concerned, without requiring the caller to re-dial another telephone number." At this center the county employed its own complaint writers many of whom, including the one who answered the call in this case, had held the same position with the city. In accordance with the agreement the city was required to provide training, supervision and assistance to the complaint writers for a year or more and was still doing so in October, 1976. A Buffalo police lieutenant or acting lieutenant remained in the room to coordinate the activities of the complaint writers and Buffalo police dispatchers and to furnish assistance of a supervisory nature when necessary.

Most of the procedures previously followed by the city were adopted by the county and incorporated in the "Manual for 911 Services". The major additional requirement imposed by the county was that the complaint writers obtain information concerning the location or municipality involved so that the complaint could be forwarded to the police department or other emergency service responsible for that area. This was the subject of additional training for those complaint writers who had previously been employed by the city. They were further instructed to determine the origin of the call at the outset because calls from the city were necessarily processed differently from those originating elsewhere. In the case of city calls the complaint card was placed on a conveyor belt which ran to the Buffalo police dispatcher's office in the room next to the center. For the noncity calls, buttons were installed at the complaint writer's desk which permitted him to immediately transfer the call to the appropriate agency and monitor it to insure that the connection had been made and that the call had been properly routed.

There was also a standard operating procedure for cases in which officers responding to the scene of a priority complaint reported "no such address". In that event the dispatcher was required to notify the lieutenant in charge or the complaint writer. They in turn would either replay the recording of the call to check the information or consult one of the street directories or "duplicate street" listings available at the center to determine whether the address provided could be located in another community.

The transcript of the recording and the testimony of various witnesses connected with the center showed that the complaint writer had failed to comply with the applicable regulations in several respects. He had neglected to obtain (1) the caller's name, (2) the complete street address which would have indicated Victoria Boulevard and not Victoria Avenue as he assumed and (3) the name of the locality or municipality where the call originated. He also neglected to verify the information by repeating it.

In addition, the police dispatcher completely neglected to initiate the follow-up procedures. He had not notified the lieutenant in charge or the complaint writer that the investigating officers could find no such address. He had simply disregarded the call because he assumed it was a "fake".

On the issue of damages for wrongful death the plaintiff called an economist who, over the defendants' objection, testified concerning the value of a housewife's services.

The jury returned a verdict for the plaintiff awarding $200,000 for conscious pain and suffering and $600,000 for wrongful death. Each of the defendants was found 50% responsible for the loss.

The Appellate Division affirmed. Two Justices dissented solely on the ground that a new trial should be granted with respect to the amount of damages recoverable for the wrongful death.

On this appeal the defendants initially contend, as they did in the courts below, that the complaint should be dismissed in its entirety because they owed no special duty to protect the decedent from an attack by a third party. The argument is based on the familiar rule that a municipality cannot be held liable for negligence in the performance of a governmental function, including police and fire protection, unless a special relationship existed between the municipality and the injured party (see, e.g., Garrett v. Holiday Inns, 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717; Florence v. Goldberg, 44 N.Y.2d 189...