Schuster v. City of New York

• Decision Date: 11 November 1958
• Citation: 5 N.Y.2d 75,180 N.Y.S.2d 265,154 N.E.2d 534
• Parties: , 154 N.E.2d 534 Max SCHUSTER, as Administrator of the Estate of Arnold L. Schuster, Deceased, Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 265

180 N.Y.S.2d 265

5 N.Y.2d 75, 154 N.E.2d 534

Max SCHUSTER, as Administrator of the Estate of Arnold L.

Schuster, Deceased, Appellant, v. CITY OF NEW YORK, Respondent.

Court of Appeals of New York.

Nov. 11, 1958.

Upon original argument, Joseph N. Friedman and Harry H. Lipsig, New York City, for appellant.

Upon reargument, Albert Cohn, Harry H. Lipsig, Eugene J. Morris and Albert J. Rosenthal, New York City, for appellant.

Peter Campbell Brown, Corp. Counsel, New York City (Fred Iscol and Seymour B. Quel, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

Plaintiff's intestate supplied information to the Police Department of the City of New York leading to the arrest of a dangerous fugitive from justice known as Willie Sutton, a criminal of national reputation. Schuster's part in Sutton's capture was widely publicized. Schuster immediately received communications threatening his life, of which he notified the police. Three weeks later Schuster was shot and killed while approaching his home in the evening. There is no suggestion that Schuster was an underworld character. On the contrary, he appears to have been a public spirited young man who had studied Sutton's picture on an FBI flyer that had been posted in his father's dry-goods store, asking for Sutton's whereabouts.

The complaint is drawn upon the theory that Schuster was shot in consequence of the information about Sutton supplied by Schuster to the police, and that the City of New York owes a special duty under the circumstances alleged to protect persons who have thus co-operated in law enforcement. It is alleged that the city failed to exercise reasonable care in supplying Schuster with police protection upon demand, that Schuster's death was due to negligence of the city in recklessly exposing him to danger, in advising him that the threats upon his life were not seriously made, in failing to supply him with a bodyguard and in heedlessly imparting to him a false impression of safety and lack of danger. The action is not based on any absolute liability claimed to exist on the part of the city, but upon its alleged failure to use ordinary or reasonable care for his security.

This being a motion addressed to the sufficiency in law of the complaint, the objection taken by the city may be dismissed at once that plaintiff will be unable to prove that Schuster's death was the result of his having informed upon Sutton. It is a sufficient answer to that objection that the complaint alleges that Schuster's death did result from the negligence of the city previously stated. No more needs to be alleged in a pleading (Sandy v. Wicks, 256 App.Div. 1007, 11 N.Y.S.2d 110). It would be premature to hold now that plaintiff will be unable to prove this allegation at the trial for the reason that no individual has been indicted thus far for Schuster's murder. Plaintiff is entitled to a day in court upon this issue, which should not be prejudged in advance of trial. Perhaps by the time of the trial the identity of Schuster's murderer will have become known and the cause of his act be further clarified. It might even be held, without identification of Schuster's assailant, that the probability is so great of his having been shot by reason of his disclosures resulting in Sutton's capture, that a question of fact would be created on this issue. Questions such as that should be reserved for a trial, and cannot be disposed of by a motion to test the legal sufficiency of the complaint on which all of the allegations of fact must be assumed to be true.

The single issue now presented is whether a municipality is under any duty to exercise reasonable care for the protection of a person in Schuster's situation. Predictions of dire financial consequences to municipalities are waved in our faces if Schuster's estate is allowed to recover for his death. An array of authorities is cited on the proposition that there is no liability to the general public from failure of police or fire protection (Murrain v. Wilson Line, 270 App.Div. 372, 59 N.Y.S.2d 750, affirmed 296 N.Y. 845, 72 N.E.2d 29; Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199; Rocco v. City of New York, 282 App.Div. 1012, 126 N.Y.S.2d 198). One might think that the floodgates of liability have been opened in negligence and compensation cases against municipalities and other defendants where the liability is less clear than it is under the allegations of this complaint (cf. 31 Texas L.Rev. 630). In our view the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration. If it were otherwise, it might well become difficult to convince the citizen to aid and co-operate with the law enforcement officers (see Note, 58 W.Va.L.Rev. 308). To uphold such a liability does not mean that municipalities are called upon to answer in damages for every loss caused by outlaws or by fire. Such a duty to Schuster bespeaks no obligation enforcible in the courts to exercise the police powers of government for the protection of every member of the general public. Nevertheless, where persons actually have aided in the apprehension or prosecution of enemies of society under the criminal law, a reciprocal duty arises on the part of society to use reasonable care for their police protection, at least where reasonably demanded or sought. Such a duty would be performed by the regular organs of government, in this instance, by the City of New York. The duty of everyone to aid in the enforcement of the law, which is as old as history, begets an answering duty on the part of government, under the circumstances of contemporary life, reasonably to protect those who have come to its assistance in this manner.

Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N.Y. 726, 124 N.E.2d 338); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N.Y.2d 455, 176 N.Y.S.2d 302); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N.Y. 114, 127 N.E.2d 838); to the estate of a man arrested for public intoxication who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O'Grady v. City of Fulton, 4 N.Y.2d 717, 171 N.Y.S.2d 108); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A.D.2d 465, 151 N.Y.S.2d 485); and to a bystander injured while directing traffic at the instance of a police officer (Adamo v. P. G. Motor Freight, 4 A.D.2d 758, 164 N.Y.S.2d 874). In McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 a city was held liable for negligently having omitted to discharge a police officer by whom plaintiff's intestate was shot. In Meistinsky v. City of New York, 309 N.Y. 998, 132 N.E.2d 900, the estate of a hold-up victim recovered who had been killed by an untrained officer's bullets. Negligence of the city was found in its omission to use reasonable care in training the police officer so that he could shoot straight and hit the criminal instead of his victim. None of these actions could have been brought until after the waiver of governmental immunity by section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364), but in each of them liability arose from negligence of a city in the exercise of the police power, and in at least two of them the negligence consisted in nonfeasance rather than in misfeasance (McCrink v. City of New York, supra; Meistinsky v. City of New York, supra).

That distinction at best furnishes an incomplete formula, as the opinion of the court by Chief Judge Cardozo says in Moch Co. v. Rensselaer Water Co. (supra, 247 N.Y. at page 167, 159 N.E. at page 898). The opinion in the Moch case states: 'If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward. Bohlen, Studies in the Law of Torts, p. 87.'

In a situation like the present, government is not merely passive; it is active in calling upon persons 'in possession of any information regarding the whereabouts of' Sutton, quoting from the FBI flyer, to communicate such information in aid of law enforcement. Where that has happened, as here, or where the public authorities have made active use of a private citizen in some other capacity in the arrest or prosecution of a criminal, it would be a misuse of language to say that the law enforcement authorities are merely passive. They are active in calling upon the citizen for help, and in utilizing his help when it is rendered. They have gone forward to such a stage, paraphrasing the opinion in the Moch case (supra), that inaction in furnishing police protection to such persons would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury. Under such circumstances, we there said 'there exists a relation out of which arises a duty to go forward'. Such a relationship existed here. The duty of Schuster to aid in law enforcement by informing the police of the whereabouts of Sutton is implied by the decision in Babington v. Yellow Taxi...