DeLong v. Erie County

• Decision Date: 09 November 1982
• Docket Number: No. 1,1
• Citation: 89 A.D.2d 376,455 N.Y.S.2d 887
• Parties: Dennis S. DeLONG, Individually and as Administrator of the Estate of Amalia DeLong, Deceased, Respondent, v. The COUNTY OF ERIE and the City of Buffalo, New York, Appellants. Appeal
• Court: New York Supreme Court — Appellate Division

Page 887

455 N.Y.S.2d 887

89 A.D.2d 376

Dennis S. DeLONG, Individually and as Administrator of the Estate of Amalia DeLong, Deceased, Respondent, v. The COUNTY OF ERIE and the City of Buffalo, New York,

Appellants. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 9, 1982.

Palmer, Heffernan, Wickser & Beyer, Buffalo, for appellant County of Erie (John Heffernan, Buffalo, of counsel).

Joseph P. McNamara, Corp. Counsel, Buffalo, for appellant City of Buffalo (Carl Tronolone, Buffalo, of counsel).

Garvey, Magner & Love, P.C., Buffalo, for respondent (Philip Magner, Buffalo, of counsel).

Before DILLON, P.J., and HANCOCK, DENMAN, MOULE and SCHNEPP, JJ.

HANCOCK, Justice:

A municipality cannot be cast in damages for mere failure to provide adequate police protection (Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860). But "where a municipality assumes a duty to a particular person or class of persons, it must perform that duty in a nonnegligent manner * * *. As Chief Judge Cardozo succinctly stated: 'The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.' (Moch Co. v. Rensselaer Water Co., 247 N.Y. at p. 167 )" (Florence v. Goldberg, 44 N.Y.2d 189, 196, 404 N.Y.S.2d 583, 375 N.E.2d 763; see Schuster v. City of New York, 5 N.Y.2d 75, concurring opn. McNally, J. at pp. 87, 88, 180 N.Y.S.2d 265, 154 N.E.2d 534; 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). Applying these accepted rules to the record before us, we affirm the jury finding of co-equal liability on the part of the County of Erie and the City of Buffalo. Together, they assumed a special duty to provide emergency police assistance to Amalia DeLong, and, acting in concert in carrying out the undertaking, they were negligent. As a result of their negligence, Amalia DeLong was stabbed to death in her home by an intruder.

In its verdict the jury awarded to her administrator $200,000 for her conscious pain and suffering and $600,000 for wrongful death, finding each defendant 50% responsible. We are all of the opinion that the verdict for conscious pain and suffering should be affirmed. As for the verdict for wrongful death, a majority of the court conclude that it also should be affirmed, but two of our number would reverse and grant a new trial on damages only for that cause of action. On appeal defendants raise several questions both as to liability and damages. To discuss their contentions as to liability, a recital of the events leading to Amalia DeLong's death is necessary.

Before her death, Amalia DeLong, her husband, and their three young children resided at 319 Victoria Boulevard in the Village of Kenmore, a suburb of Buffalo located in Erie County. In October, 1976, the Village of Kenmore was one of the four communities outside of Buffalo fully served by the 911 emergency telephone system operated by the Central Police Services, an agency of Erie County, with the active assistance and cooperation of the Buffalo Police Department. The system was located in the 911 room in Buffalo Police Headquarters in downtown Buffalo. At 9:29:29 in the morning of October 25, 1976 Amalia DeLong dialed 911 on her telephone and was immediately connected to the 911 room. The transcript of her call is as follows:

                9:29:29 -  Caller:            "Police?"
                           Complaint Writer:  "911."
                           Caller:            "Police, please come, 319 Victoria
                                              right away."
                           Complaint Writer:  "What's wrong?"
                           Caller:            "There's a burglar."
                9:29:34 -  Complaint Writer:  "In there now?"
                           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."
                9:29:43 -  Caller:            "Okay."
                

The complaint writer recorded the address on the complaint card as "219 Victoria"--not "319 Victoria". The call had lasted 14 seconds. The complaint writer had not ascertained the caller's name, that she was calling from the Village of Kenmore, or that the complete name of the street was "Victoria Boulevard". Aware that there was a Victoria Avenue in the City of Buffalo and assuming that he was dealing with a Buffalo emergency, the complaint writer stamped the word "flash" on the complaint card and routed it on the high priority conveyor to the Buffalo police dispatcher stationed on the other side of a glass partition. At 9:30:48, the dispatcher broadcast to the cars on duty in the 16th precinct (where Victoria Avenue was located) the following: "Car 16 at 219 Victoria. A burglary in progress." At 9:33:46 one of the cars radioed back: "Address of 219 Victoria does not exist - highest number 195." The dispatcher responded: "Okay. You're clear on that. No such address as 219 Victoria or burglary in progress." Thus, at 9:34, the 16th precinct cars were released from the call and no further action was taken. Less than four and one-half minutes had elapsed from the end of Amalia DeLong's call. If the call had been identified as 319 Victoria Boulevard in the Village of Kenmore, the complaint writer could, by pressing two buttons, have made instant and direct contact with the Village of Kenmore Police Department.

At approximately 9:42, neighbors observed Amalia DeLong run from the front door of her house. She was naked, covered with blood and bleeding profusely. She fell to the sidewalk. Before her collape, she uttered her only words: "The baby. The baby." Her infant child could be seen standing inside the open door.

The Village of Kenmore Police Department responded immediately to a call for assistance with a car which arrived within one minute--at 9:43. The Kenmore Police Chief testified that the police station was approximately 1375 feet from the DeLong house and that if the police car had been responding to the report of a burglary of an occupied house, it would have used the siren in approaching to scare the burglar away. The paramedics arrived at 9:47. Their records indicated that at 9:53 Amalia DeLong had no vital signs.

Amalia DeLong had received seven knife wounds: to the left side of the neck, the left side of the head, the second finger of the right hand, the nail of the third finger on the left hand, the thumb of the left hand, and a wound to the left shoulder. The laceration on the neck was fatal. It was deep and had severed the juglar vein and carotid artery on the left. The cuts on the fingers were described as being of a "defensive type".

The police in searching the house found evidence of a savage attack. A housecoat, feminine undergarments, and a brassiere with a broken clasp were found on the living room floor, and pillows, papers and other items were strewn about. There were spatterings of blood on the walls and floor in the kitchen, in the hallway and on the rug in the living room and several large stains on the front door, on the rug inside the door and on the porch.

The time of Amalia DeLong's death could not be precisely fixed, but it occurred between 9:42, the time when she spoke her last words, and 9:53, when she showed no signs of life. A pathologist testified that a person of her size could have lived from two minutes and 25 seconds to four minutes and 49 seconds after severance of the jugular vein and carotid artery. He opined that the fatal blow was inflicted at 9:38, four minutes after the dispatcher had "cleared" the call.

The purpose of the 911 emergency or "hot line" system is to assist in the delivery of police services to the people in the communities served (determined by whether the telephone exchanges in the communities are such that dialing 911 will give an automatic connection with the 911 room at Buffalo police headquarters). The public was made aware of the 911 emergency system by, among other things, a listing on the page in the telephone book for the Erie County metropolitan area headed "Emergency Numbers". The first caption appearing on the page in large type is "Police", opposite which appears in slightly smaller type a subheading "Local Police". For both police and local police the number given is "911".

The system has two components: complaint writing and dispatching. The Buffalo Police Department performed both functions until March, 1975 when the city and county entered into a contract transferring the 911 complaint writing function to the county, to be performed by county civil service employees. Under the contract, the city agreed to furnish the facilities for the 911 operation at the Buffalo Police headquarters including switchboard services, parking places, locker space and other necessaries for the county employees. The contract also provided that: "For one year from the date of this agreement, the City shall keep assigned to the complaint writing function sufficient police officers per shift experienced in complaint writing, at the City's expense, to provide training, supervision and guidance to County personnel engaged in the complaint writing function." And that "one year, it shall be mutually agreed by the Commissioner of Central Police Services and the Commissioner of the Buffalo Police Department whether this arrangement for training and supervision shall be continued, for what period it shall be continued, or whether particular situations may at various periods require such an arrangement." And that "City of Buffalo, specifically the Buffalo Police Department '911' Emergency Control Center, expects to maintain its own dispatching personnel and supervisory Lieutenants"; and further that no substantial changes in procedures which might require changes in the complaint writing function shall be "instituted without the concurrence of the Commissioner of...