Ast v. State

• Citation: 474 N.Y.S.2d 174,123 Misc.2d 200
• Decision Date: 17 February 1984
• Docket Number: No. 64247,64247
• Parties: Albert W. AST and Estelle Ast, Claimants, v. The STATE of New York, Defendant Claim
• Court: New York Court of Claims

Page 174

474 N.Y.S.2d 174

123 Misc.2d 200

Albert W. AST and Estelle Ast, Claimants, v. The STATE of New York, Defendant

Claim No. 64247.

Court of Claims of New York.

Feb. 17, 1984.

Hurwitz & Fine, P.C. by Sheldon Hurwitz, Buffalo, for claimants.

Robert Abrams, Atty. Gen. (Smith, Murphy & Schoepperle, Attys. Robert Whetzle, Buffalo, of counsel), for defendant.

DECISION

THOMAS J. LOWERY, Jr., Judge.

At about 10:00 a.m. on April 11, 1980, Albert Ast. an employee of the New York State Thruway Authority, was injured when an errant motorist crashed through a wooden barrier that was blocking the lane adjacent to his tollbooth. At the time, the State Police were in pursuit and had requested that he assist them in their effort to box in the miscreant at the exit. It is claimed that the accident and the injuries sustained were the result of the State's negligence.

The State Police were first made aware of the errant motorist 15 minutes before the accident when they received word that he was heading east on the Thruway at a speed in excess of 100 miles per hour. Shortly thereafter, two troopers assigned to a radar patrol stopped the motorist after he had been clocked traveling at a speed of 112 miles per hour. The motorist, who was later identified as Halbert Brooks, was asked to produce his license and registration. After he did so, the troopers returned to their patrol car for the purpose of authenticating the documents. While the check was being made, one of the troopers directed Brooks to move his vehicle next to the patrol car. He complied. He was then asked to leave his vehicle, bring his keys, and sit in the front seat of the patrol car.

The license produced by Brooks was issued to a person in the name of "Wright", which did not match the name on the registration. Brooks was then asked to state his date of birth. When he refused, the troopers ordered him out of the car. Brooks was then directed to empty his pockets and he complied to the extent of placing his keys on the hood of the police car. Before the troopers could take possession of the keys, Brooks punched one of the officers and fled. He was cornered seconds later, and began yelling obscenities and daring the troopers to shoot him.

At this point, the exact whereabouts of Brooks' keys were not known to the troopers and they made no effort either to locate the keys or to secure his car. Instead, one of the troopers returned to the patrol car and radioed for assistance, while the other attempted to apprehend Brooks. Unfortunately, the effort proved futile. Brooks was able to elude the trooper and return to his vehicle. A struggle ensued and Brooks, who had somehow managed to retrieve his keys, started his vehicle and began to drive away. The troopers, concerned with being crushed between the two vehicles, abandoned their efforts to subdue him. Brooks sped from the scene with the troopers in vehicular pursuit.

Thereafter, the troopers observed Brooks approaching Exit 39, the interchange where Albert Ast was employed. The troopers then issued a "Singal 30" on the radio, which indicated that they were in need of assistance. They also, as was their practice at times, radioed the tollbooth and requested that the collectors block the lanes. Ast complied by leaving his booth and lower a 2 X 8 wooden barrier across the lane. Upon returning to his booth, he observed that the barrier was not fully secured. He left his booth a second time and refastened the barrier. On his way back, he observed the Brooks vehicle heading towards an adjoining lane that was blocked by a patron's car. Instead of returning to his booth, Ast attempted to warn the patron of the impending danger. At the last second, however, Brooks altered his course and entered Ast's lane, crashing through the wooden barrier. The barrier shattered and flying splinters struck Ast in the face.

The claimants first contend that the accident and resultant injuries were caused by the negligence of the State troopers in failing to exercise due care to prevent Brooks from proceeding further once he had been stopped.

In essence, what is being alleged is a failure to provide effective police protection, a governmental function. In such cases, liability depends upon the existence of a special duty owed by the State to the injured party to exercise due care. (DeLong v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; Vitale v. City of New York, 60 N.Y.2d 861, 470 N.Y.S.2d 358, 458 N.E.2d 817; Garrett v. Holiday Inns Inc., 58 N.Y.2d 253, 460 N.Y.S.2d 774, 447 N.E.2d 717; Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Dutton v. City of Olean, 60 A.D.2d 335, 401 N.Y.S.2d 118, affd 47 N.Y.2d 756, 417 N.Y.S.2d 463, 391 N.E.2d 299; Bass v. City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569.) This duty may be created where the status of the claimant gives rise to a special relationship. Thus, a special duty is owed to informers (Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534); undercover agents (Swanner v. United States, 309 F.Supp. 1183); persons under court orders of protection (Baker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515). Another way the duty may be created is where a special relationship arises from affirmative statements or acts which induce reliance to the claimant's detriment (H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896; Prosser, Torts [4th ed], § 56, p 340), for example where a duty has been undertaken to provide emergency police services (DeLong v. County of Erie, supra ); where a building has been certified as safe to its owners (Garrett v. Holiday Inns Inc., supra ); where crossing guards have been provided to school children (Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763) and where police protection has been furnished and later withdrawn. (Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 382 N.Y.S.2d 152,app. dsmd., 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388.) It may also arise where affirmative police action is so integrally related to the sequence of events leading to the claimant's injury that it may be said that the action itself created the danger. (Lubelfeld v. City of New York, 4 N.Y.2d 455, 176 N.Y.S.2d 302, 151 N.E.2d 862; Adamo v. P.G. Motor Freight Inc., 4 A.D.2d 758, 164 N.Y.S.2d 874; Nelson v. City of New York, 100 Misc.2d 309, 418 N.Y.S.2d 895, affd. 75 A.D.2d 1025, 427 N.Y.S.2d 893; Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925.) In the absence of some affirmative action, however, a special duty is not created merely because an individual is likely to be endangered by known criminal activity. (Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, supra; Dutton v. City of Olean, 60 A.D.2d 335, 401 N.Y.S.2d 118, affd. 47 N.Y.2d 756, 417 N.Y.S.2d 463, 391 N.E.2d 299, supra; King v. City of New York, 3 Misc.2d 241, 152 N.Y.S.2d 110.)

Applying these principles to the present case, it is readily apparent that at the time Brooks was stopped and detained, Ast enjoyed no special relationship with the troopers that would give rise to a special duty. At that point, he had no contact with the troopers and his status was merely that of a member of the general public, to whom no particular duty was owed. Moreover, having had no contact with the troopers, he had no knowledge of their actions so that it cannot be said that he relied thereon to his detriment. Finally, the troopers' actions did not create the danger, since they were reasonable under the circumstances. ¹ The danger was created by Brooks' unanticipated flight from detention, an act that cannot be attributed to the troopers. Thus, it cannot be said that the troopers launched the force that caused the injury to Ast.

Next, it is claimed that a special relationship may be gleaned from the long-standing practice whereby toll collectors would provide law enforcement assistance when requested. It is argued that this relationship imposed a duty on the troopers to exercise due care in making such requests and, further, that said duty was breached.

In this regard, it is noted that public policy favors the existence of such a duty. Statutes have been enacted that encourage citizens to give assistance to police officers ( Penal Law, § 195.10) and also require municipalities to respond in damages to persons who have been injured or killed as a result of aiding in law enforcement. ( General Municipal Law, § 71-a.) Unfortunately, the General Municipal Law has no application to the State (see General Municipal Law, § 2), and there is no corresponding statute applicable to the State. This is an apparent oversight, since the intent of the legislature is clear, as demonstrated by section 79-f of the Civil Rights Law, which provides for the State to compensate persons injured by the acts of those who have come to the aid of police officers.

Aside from the special relationship that was born out of this practice, it may be said that a duty to exercise due care arose out of the troopers' very act of requesting assistance, since it set in motion a chain of events that led to Ast's injury. ² In such a case, the duty would be owed not only to those who may have responded to a request for assistance, but also to those individuals who may have been within the ambit of the foreseeable risk. (See Lubelfeld v. City of New York, 4 N.Y.2d 455, 176 N.Y.S.2d 302, 151 N.E.2d 862, supra; Selkowitz v. County of Nassau, 58 A.D.2d 888, 396 N.Y.S.2d 885, affd. 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140; Adamo v. P.G. Motor Freight, Inc., 4 A.D.2d 758, 164 N.Y.S.2d 874, supra; Nelson v. City of New York, 100 Misc.2d 309, 418 N.Y.S.2d 895, affd. 75 A.D.2d 1025, 427 N.Y.S.2d 893, supra; Jansen v. State of New York, 60 Misc.2d 36, 301 N.Y.S.2d 811, affd. 32 A.D.2d 889, 302 N.Y.S.2d 1016; Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925, supra.)

The question that remains is whether,...