Valdez v. City of New York

• Decision Date: 18 October 2011
• Citation: 936 N.Y.S.2d 587,18 N.Y.3d 69,2011 N.Y. Slip Op. 07252,960 N.E.2d 356
• Court: New York Court of Appeals Court of Appeals
• Parties: Carmen VALDEZ, Individually and as Mother and Natural Guardian of Ceasar Marti and Another, Infants, Appellant, v. CITY OF NEW YORK et al., Respondents.

18 N.Y.3d 69
2011 N.Y. Slip Op. 07252
936 N.Y.S.2d 587
960 N.E.2d 356

Carmen VALDEZ, Individually and as Mother and Natural Guardian of Ceasar Marti and Another, Infants, Appellant,
v.
CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Oct. 18, 2011.

[936 N.Y.S.2d 590]

Sivin & Miller, LLP, New York City (Edward Sivin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman and Larry A. Sonnenshein of counsel), for respondents.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Janice MacAvoy, Margaret E. Hirce and Brenna C. Terry of counsel), and Sandra S. Park for New York City Bar Association and others, amici curiae.[18 N.Y.3d 72] OPINION OF THE COURT GRAFFEO, J.

[960 N.E.2d 359] After her estranged boyfriend shot her, causing serious injuries, plaintiff Carmen Valdez sued the City of New York for failing to provide her with adequate police protection to prevent the attack. The primary issue before us is whether there was sufficient evidence in the record to establish the existence of a special relationship between Valdez and the police. Because we conclude that there was not, we affirm the order of the Appellate Division, which reversed the judgment in plaintiffs' favor and dismissed the complaint.

I.

In July 1996, after a prior order of protection expired, plaintiff Carmen Valdez obtained a second order of protection against her former boyfriend, Felix Perez, in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on Perez. At that time, Valdez met Officers Torres and Pereira—the two individuals assigned to the unit. Valdez later received a telephone call from Officer Pereira confirming that Perez had been served with the court order.

According to Valdez, about a week later, Perez telephoned her at around 5:00 p.m. on a Friday evening and threatened to kill her. Perez had made various threats in the past—threats that prompted Valdez to secure an order of protection—but Valdez [18 N.Y.3d 73] viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. Valdez immediately left her apartment with her two young sons, planning to go to her grandmother's house in the Bronx. On the way to her car, however, she stopped at a pay phone and contacted the Domestic Violence Unit to alert the police to the latest threat by Perez. She contended that she spoke with Officer Torres, who told her that she should return to her apartment and that the police would arrest Perez “immediately.” ¹

[936 N.Y.S.2d 591]

[960 N.E.2d 360] After speaking to Officer Torres, Valdez returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether Perez had been located or arrested. The night passed without incident. The following day—a Saturday—Valdez and the children remained in their apartment most of the day. At about 10:45 p.m. that evening, Valdez stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by Perez brandishing a gun. He ushered her back into the apartment doorway and, tragically, shot her two or three times, injuring her face and arm. The two children witnessed the shooting but were not physically harmed. Perez then turned the gun on himself and committed suicide.

Valdez commenced this action against the City of New York claiming that, based on her telephone conversation with Officer Torres, the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest Perez prior to the attack; and that its negligence was a proximate cause of the shooting. Valdez also brought claims on behalf of the children, contending that the “special relationship” extended to them and that they could recover damages for negligent infliction of emotional distress because they were in the zone of danger at the time of the attack.

[18 N.Y.3d 74] After issue was joined, the parties engaged in discovery but the City did not file a pretrial motion to dismiss or seek summary judgment dismissing the complaint. Instead, in 2006, the case proceeded to a jury trial. At the commencement of the trial, the City moved to dismiss the complaint on the ground that plaintiff had failed to state claims upon which relief could be granted asserting, among other arguments, that Valdez's allegations failed to establish the existence of a “special relationship” giving rise to a duty of care because there was insufficient evidence to show that any reliance on the purported statements of Officer Torres was justifiable. The City renewed this argument at the close of plaintiffs' proof. Both of these motions were denied.

At trial, Valdez offered her account of the events preceding the shooting, while the City asserted that Valdez had not contacted the police the night before the shooting and, as such, that the police neither promised to arrest Perez nor directed Valdez to return to her apartment. Consistent with its assertion that it never received a complaint from Valdez on the night in question, the City did not offer any evidence of investigative or other police activities taken in response to the telephone call. The jury apparently credited plaintiffs' proof as it returned a verdict, apportioning fault 50% to the City and 50% to Perez, awarding damages in the amount of $9.93 million. Beyond the finding of negligence, the jury also determined that the City had acted in reckless disregard of plaintiffs' safety. The City moved to set aside the verdict on a number of grounds, reiterating its contention that the evidence had been insufficient to support a finding of “special relationship.” Supreme Court declined to disturb the verdict on liability but modified the damages award in a minor respect (the parties also stipulated to reduce the award for past medical expenses).

The City appealed to the Appellate Division, which reversed the judgment and vacated the verdict in a divided decision (74 A.D.3d 76, 901 N.Y.S.2d 166 [2010] ). [960 N.E.2d 361]

[936 N.Y.S.2d 592]

Three justices concluded that plaintiff failed to establish a special relationship because the proof was inadequate to support a finding that Valdez's reliance on the officer's promise to arrest Perez was justifiable. The two dissenting justices reasoned that there was sufficient evidence of justifiable reliance and would have sustained the liability verdict, albeit modifying the judgment to vacate the reckless disregard finding. Given that this Court's decisions in McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009) and [18 N.Y.3d 75] Dinardo v. City of New York, 13 N.Y.3d 872, 893 N.Y.S.2d 818, 921 N.E.2d 585 (2009) were issued while this case was pending on appeal to the Appellate Division, the plurality, concurring and dissenting opinions all discussed those two cases. In particular, having concluded that plaintiffs demonstrated the existence of a special relationship, the dissent further addressed whether the failure of the police to arrest Perez or take other action to prevent the attack constituted a ministerial or discretionary act. Characterizing that act as ministerial, the dissent would have permitted plaintiff to recover.

Plaintiff appealed to this Court as of right on the two-justice dissent.

II.

We begin with the observation that it is undisputed that this case involves the provision of police protection, which is a classic governmental, rather than proprietary, function. That being so, the facts potentially implicate two separate but well-established grounds for a municipality to secure dismissal of a tort claim brought against it by a private citizen injured by a third party. The first relates to the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care. Under the public duty rule, although a municipality owes a general duty to the public at large to furnish police protection, this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created. This is an offshoot of the general proposition that “[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally” ( Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). We have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties. Thus, in order to pursue her negligence action against the City in this case, plaintiffs were required to allege a special duty—which they attempted to do by contending that the telephone conversation with Officer Torres created a special relationship.

The second principle relevant here relates not to an element of plaintiffs' negligence claim but to a defense that was potentially available to the City—the governmental function immunity defense. Although the State long ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to [18 N.Y.3d 76] shield public entities from liability for discretionary actions taken during the performance of governmental functions ( Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011]; Lauer, 95 N.Y.2d at 99, 711 N.Y.S.2d 112, 733 N.E.2d 184; Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ).² This limitation[960 N.E.2d 362]

[936 N.Y.S.2d 593]

on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their...