Schuster v. City of New York

• Decision Date: 30 June 1955
• Citation: 143 N.Y.S.2d 778,286 A.D. 389
• Parties: Max SCHUSTER, as administrator of the goods, chattels and credits of Arnold L. Schuster, deceased, appellant, v. The CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

Page 778

143 N.Y.S.2d 778

286 A.D. 389

Max SCHUSTER, as administrator of the goods, chattels and credits of Arnold L. Schuster, deceased, appellant, v. The CITY OF NEW YORK, respondent.

Supreme Court, Appellate Division, Second Department.

June 30, 1955.

Harry H. Lipsig, Joseph N. Friedman, New York City, for appellant.

Fred Iscol, New York City (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, New York City, Corp. Countsel), for respondent.

Before NOLAN P. J., and WENZEL, MacCRATE, BELDOCK and UGHETTA, JJ.

PER CURIAM.

Plaintiff seek damages claimed to have been sustained because of the failure of the police to protect adequately his intestate from violence after the latter had informed the police of the whereabouts of a notorious criminal who was then arrested. It is alleged that the police were notified of threats against intestate's person and life, but withdrew protection and refused to grant protection after request. Recovery is sought also because the police falsely represented to the intestate that he was not in danger because of the threats, whereby he was induced to go onto a public highway where he was shot.

When the State waived its immunity from suit for acts of its servants or agents, it accompanied the waiver by a provision that its liability should be determined by the same rules of law as are applied to individuals and corporations in an action in the Supreme Court, Court of Claims Act, § 8.

The complaint does not identify intestate's slayer by name, description or as a relative or associate of the criminal informed against, or as one who had threatened harm to the intestate or his family, or one the police knew or had reason to believe would harm the intestate because he had informed as to the whereabouts of the criminal sought by the police. Neither is there allegation as to the identity of the persons who made threats or whether they were in or out of the city of New York when the threats were made. It is not alleged that the intestate was taken into protective custody by the police or that they had ordered him to report if or when he desired to leave his home, or that he advised them he was leaving his home on the day he met his death. No allegation of the complaint indicates that he was subjected to restraint by the police after the criminal had been apprehended.

No liability arose under section 1848 of the Penal Law. Injury or death did not occur while the intestate was aiding the police to arrest the criminal. The complaint states no facts which would warrant recovery by reason of the provisions of any other statute.

There is no claim of any contractual liability. The intestate was not an employee of the police department. Neither did the police assume the duty of a guardian toward him. Cf. Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872. Any liability for the death can be predicated solely on failure to perform a duty to give intestate special protection. As a member of the general public, no duty of special protection was owed to him by the police. Murrain v. Wilson Line, Inc., 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; Rocco v. City of New York, 282 App.Div. 1012, 126 N.Y.S.2d 198. Neither by statute nor under the Constitution nor by contract was there imposed on the sovereign State or its agents and servants a duty to give special police protection to the intestate. If there was a duty to afford him special police protection from injury after and because he had informed, such duty is court-created. In re Quarles and Butler, 158 U.S. 532, 536, 15 S.Ct. 959, 39 L.Ed. 1080. If we assume, without deciding, that such duty did exist, it called for reasonable protection only against acts of violence by the criminal or his associates or agents or those who had made threats, the identity of whom the police had knowledge or notice, and which violence by such persons might reasonably have been anticipated. No fact is pleaded from which it can be inferred that the violence here was inflicted because the intestate had informed or that the police should have protected him against violence by the assailant. Nor does the complaint allege any facts or circumstances known by the police which could establish that they knew or should have known who were the persons who made the threats or that the slayer was one of such persons or that the representations as to the nature of the threats were false and not mere statements of opinion.

The order and judgment should be affirmed, without costs.

Order granting motion to dismiss the complaint for insufficiency, and judgment entered thereon, affirmed, without costs.

NOLAN, P. J., and WENZEL, MacCRATE and UGHETTA, JJ., concur.

BELDOCK, Justice (dissenting).

At the outset it should be noted that in this case we are not concerned with the sovereign's outmoded immunity from civil liability for negligence in the performance of a governmental function. Such immunity no longer exists. Whether for a negligent act of commission or omission the sovereign is now liable to any person who, as an individual, is entitled to the proper performance of the governmental function and who has been damaged by reason of the sovereign's careless action or nonaction. Such surrender of the sovereign immunity 'is broad, general and unqualified'. The test of the sovereign's liability is now precisely the same as though it were an ordinary person or corporation charged with the negligent performance of the governmental duty involved. Runkel v. City of New York, 282 App.Div. 173, 178-179, 123 N.Y.S.2d 485, 490-491, and cases there cited; Ritter v. State of New York, 204 Misc. 300, 304-307, 122 N.Y.S.2d 334, 338-341, reversed on other grounds, 283 App.Div. 833, 128 N.Y.S.2d 830.

Accordingly, it has now become the established rule that the state or municipality may be held liable for injuries sustained due to a negligent act of commission or omission by its police officials in the course of their duties, cf. McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419; Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364; Slavin v. State of New York, 249 App.Div. 72, 291 N.Y.S. 721; Egan v. State of New York, 255 App.Div. 825, 7 N.Y.S.2d 64; Pacheco v. City of New York, Sup., 140 N.Y.S.2d 275, affirmed 285 App.Div. 1031, 140 N.Y.S.2d 500; Burns v. City of New York, Sup., 141 N.Y.S.2d 279.

In the case at bar the principal questions presented are: (1) whether under the circumstances alleged in the complaint the city owed to plaintiff's intestate a duty of personal police protection against unknown potential assailants; and (2) if it did, whether its breach of that duty may be said to be the cause of his death.

The majority base their dismissal of the complaint on two grounds: First, that the city did not owe the intestate any duty to furnish him special police protection; Second, if it be assumed that the city did owe the intestate such a duty it extended only to known or identified potential assailants who intended to harm him because of his status as an informed (to wit: his status resulting from his aid to the police which led to their apprehension of the notorious, wanted criminal at large--Willie Sutton); and, the majority point out, the complaint here fails to allege that it was such an assailant who killed the intestate. In other words, the majority's position under this second ground is that, even if it be assumed that the city owed the intestate a police duty to the limited extent indicated, there is an absence of allegation showing causal connection between the city's neglect in the performance of such limited police duty and the intestate's untimely death.

In my opinion, in the light of the allegations of the complaint--which must be accepted as true upon this demurrer motion, the city's obligation to the intestate is not to be measured by the requirement of 'special' police protection or by the limitation of police protection against known or identified potential assailants. Rather, under the circumstances alleged as noted below, the city's obligation simply was to furnish the intestate with such protection as would be adequate in view of his known status as an informer upon a criminal who, as a matter of common knowledge, was extremely dangerous and who, through his cohorts, would not hesitate at an opportune moment to wreak his vengeance upon the intestate--the one who was the primary cause of his unexpected apprehension and incarceration.

Among other facts, the complaint alleges that Sutton was wanted by the police; that as a result of the information which the intestate acquired on February 18, 1952, and imparted to the police, Sutton was apprehended; that the city's police department knew that Sutton 'was an unusually dangerous character with an unusually dangerous group of asociates and that they all had a special reputation for violence'; that the police department widely publicized the intestate's role in supplying the information which led to Sutton's capture; that thereafter the intestate and his immediate family received from anonymous persons threatening letters, missives, notes and telephone messages--of all of which the police department was informed; that the police department 'initially undertook a limited and partial protection' of the intestate's place of business and home and of his immediate family but thereafter discontinued such protection; that it effected its discontinuance of the protection despite the 'continuance of the anonymous letters, missives, notes and messages which threatened and menaced the life, safety and welfare' of the intestate and his immediate family, and despite its knowledge of the continuance of the said anonymous communications and of their contents; that by reason of the foregoing the police department had constructive and actual notice that the...