Drake v. State

• Decision Date: 18 May 1979
• Docket Number: 59035 and 59058,Nos. 59033,s. 59033
• Citation: 97 Misc.2d 1015,416 N.Y.S.2d 734
• Parties: Steven DRAKE, Claimant, v. The STATE of New York, Defendant. Roger J. MADIGAN, as father of Aprile Madigan, an infant, and Individually, Claimant, v. The STATE of New York, Defendant. Michael DRAKE, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 734

416 N.Y.S.2d 734

97 Misc.2d 1015

Steven DRAKE, Claimant, v. The STATE of New York, Defendant.

Roger J. MADIGAN, as father of Aprile Madigan, an infant, and Individually, Claimant, v. The STATE of New York, Defendant.

Michael DRAKE, Claimant, v. The STATE of New York, Defendant.

Claim Nos. 59033, 59035 and 59058.

Court of Claims of New York.

May 18, 1979.

Drake & Drake by Charles A. Drake, Utica, for the Drake claimants

Bonney & Nicit by John J. Nicit, Theodore C. Bonney, Waterloo, for the Madigan claimants.

Robert Abrams, Atty. Gen. by James B. Tuttle, Asst. Atty. Gen., for defendant.

DECISION

THOMAS J. LOWERY, Jr., Judge.

On October 28, 1974, the claimants were injured when their vehicles were fired upon by Indians from an adjacent campsite owned by the State of New York at Moss Lake, Herkimer County. These timely filed claims are predicated on the State's negligence in failing to take adequate measure to abate the known dangerous condition.

Factual Background

The State acquired the Moss Lake campsite in 1973 as part of the Adirondack Forest Preserve. The land was improved with several buildings which were formerly used as part of a Girl Scout summer camp. Numerous hiking trails meandered throughout the area. The campsite was bisected by Big Moose Road, a rural county highway, that coursed in a north-south direction between the hamlet of Eagle Bay and Big Moose.

In May of 1974, a group, representing themselves as Mohawk Indians, took possession and claimed ownership of the campsite. They immediately posted signs on both sides of Big Moose Road, which warned that the site was patrolled by the "Warrior Society". Bunkers and foxholes were placed at various locations to the west of the road. Armed patrols were maintained throughout the site and particularly along Big Moose Road. In sum, the occupied lands resembled an armed encampment.

Indian patrols physically ousted hikers and others who entered upon the property. Additionally, Indians bearing weapons stopped motorists on Big Moose Road. On at least one occasion, approximately eight days prior to the subject incidents, there was a confrontation with a motorist which involved the discharge of weapons.

The State was aware of the aforesaid activities and the danger posed to motorists on Big Moose Road, prior to October 28, 1974. In response, they merely stepped up patrols on the roadway, investigated complaints without entering the campsite and gathered information from individuals in the area. Although it may have been crucial to the case, the State introduced no evidence that its failure to take other action was the result of a high level policy decision. ¹

Sometime after 4:00 p. m. on October 28, 1974, Steven Drake, accompanied by his brother Michael, left Eagle Bay and drove north on Big Moose Road. While passing the Moss Lake campsite they yelled "war whoops" and, within seconds, gunshots were fired in their direction from the campsite. The Drakes sped from the scene and minutes later stopped at a restaurant at Big Moose. Upon arrival, Steven Drake advised the State Police of the shooting incident by telephone. The call was received at 4:55 p. m. Steven was advised only that the State Police would investigate the incident.

At approximately 5:15 p. m. the Drakes returned to their car and placed a tire jack in the back seat. With Steven driving, they started their return trip. When they were approximately one quarter of a mile north of the main entrance to the campsite, they observed Indians at the gate. Proceeding further, they saw that the Indians were armed. As they passed, the Indians fired at the car, shattering its windows. Both Steven and Michael Drake were hit by the gunfire. Thereafter, they proceeded to the home of George Sehring, a State Environmental Conservation officer, who lived nearby on Big Moose Road. An ambulance was called and the Drakes were transported to the Old Forge Medical Center.

The State Police received notice of this shooting at about 5:50 p. m. thereafter, at least 11 police officers became involved in the investigation. While nine of these officers proceeded to the Medical Center, purportedly to investigate the incident, not one was dispatched to the Moss Lake campsite. Although the establishment of roadblocks was discussed as early as 6:15 p. m., none were established until 8:00 p. m., and then only to the south of the campsite.

At about the time that the roadblock was finally established to the south of the campsite, the Madigan family was approaching the awaiting ambush from the north. As they passed the main gate, they were met by a volley of gunfire. Aprile Madigan, age 9 years, was seriously injured.

State's Negligence

The general rule in New York is that the State, acting in its governmental capacity, cannot be cast in damages for its failure to furnish police protection to a particular individual. (Riss v. City of New York, 22 N.Y.2d 579, 393 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. --- N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ---- (1979); Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 382 N.Y.S.2d 152, App. d'smd. 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388; Bass v. City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, Affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154.) The rule is based on the principle that courts should not review policy decisions of coordinate branches of government concerning the availability and allocation of limited police resources. (Riss v. City of New York, supra.)

The general rule does not apply where there is owed a special duty to the claimant. 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), and school children where a municipality has assumed a responsibility of providing crossing guards. (Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763.) Another way the duty may be created is where a special relationship arises from affirmative acts which affect the interests of the claimant adversely. (H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896; Prosser on Torts, 4th ed., § 56, p. 340.) This may occur where the claimant has been induced to rely on statements or other acts, to his detriment. (Zibbon v. Town of Cheektowaga, supra.) 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. (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, supra; Dutton v. City of Olean, supra; King v. City of New York, 3 Misc.2d 241, 152 N.Y.S.2d 110.)

In the present case, the status of the Drakes and the Madigans as motorists, did not give rise to a special relationship obligating the State to provide police protection. (Pinkney v. City of New York, 50 A.D.2d 928, 377 N.Y.S.2d 607, affd. 40 N.Y.2d 1004, 391 N.Y.S.2d 411, 359 N.E.2d 1001; Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615, affd. 32 N.Y.2d 684, 343 N.Y.S.2d 361, 296 N.E.2d 257; Matter of Santana v. New York State Thruway Authority, 92 Misc.2d 1, 399 N.Y.S.2d 395.) Further, no affirmative action was taken by the State Police that affected the interests of the claimants adversely. The Drakes, although informed that the State Police would investigate the incident, were not told that police protection would be forthcoming. Therefore, no statements were made on which the Drakes could justifiably have relied. Moreover, even assuming that there was a promise of police protection, the actions of the Drakes in returning to the scene so quickly, with a tire jack in the back seat, belies any claims of reliance. The Madigans had not communicated with the State Police and were not aware of their activity. Although the State Police inexpeditiously undertook to establish roadblocks north of the encampment, such action placed the Madigans in no worse a position than had the police done nothing at all. In sum, no liability can exist for the State's failure to provide police protection.

A duty exists, however, predicated on the State's status as a landowner, separate and distinct from any duty to provide police protection. As a landowner, the State acts in its proprietary capacity rather than its governmental capacity and owes the same duty of care as that of a private individual. (Caldwell v. Village of Is. Pk., 304 N.Y. 268, 107 N.E.2d 441; Augustine v. Town of Brant, 249 N.Y. 198, 163 N.E. 732; Stevens v. City of Pittsburgh, 329 Pa. 496, 198 A. 655.) A landowner must exercise reasonable care to abate a known dangerous condition existing on his lands, if he has an opportunity to do so. (Hogle v. H. H. Franklin Mfg. Co., 199 N.Y. 388, 92 N.E. 794; 46 N.Y.Jur., Premises Liability, § 2; Prosser on Torts, 4th ed., ch 10.) It makes no difference whether the source of the danger relates to a physical condition (Shaknis v. State of New York, 251 A.D. 767, 295 N.Y.S. 663, affd. sub. nom. Doulin v. State of New York, 277 N.Y. 558, 13 N.E.2d 472), or arises from the activities of third parties (Townsley v. State of New York, 6 Misc.2d 557, 164 N.Y.S.2d 840; Gleason v. Hillcrest Golf Course, Inc., 148 Misc. 246, 265 N.Y.S. 886), which may include the known activities of trespassers. (DeRyss v. New York Cent. R. Co., 275 N.Y. 85, 9 N.E.2d 788; Prosser on Torts, 4th ed., § 57, pp. 356, 357; See also, Hogle v. H. H. Franklin Mfg. Co., supra, 199 N.Y. at p. 396, 92 N.E. at p. 797....