New York Law Review

Tag: Special Relationship

  • Voss v. CH Insurance Brokerage Services, Co., Inc., 21 N.Y.3d 719 (2013): Extent of Insurance Broker’s Duty of Care Based on Special Relationship

    Voss v. CH Insurance Brokerage Services, Co., Inc., 21 N.Y.3d 719 (2013)

    An insurance broker has a duty to advise a client on adequate coverage beyond a client’s specific request if a ‘special relationship’ exists, determined on a case-by-case basis.

    Summary

    Deborah Voss and her businesses sued CH Insurance Brokerage Services (CHI), alleging CHI negligently secured inadequate business interruption insurance. Voss claimed a ‘special relationship’ existed with CHI, creating a duty to advise on adequate coverage. The New York Court of Appeals held that CHI failed to prove the absence of a ‘special relationship,’ reversing the lower court’s summary judgment for CHI. The court emphasized that whether a special relationship exists is fact-dependent. Awareness of policy limits by the insured does not negate a broker’s potential negligence when a special relationship exists. Proximate cause is generally a fact question for the jury.

    Facts

    Voss began using CHI in 2004 for insurance. CHI’s representative, Convertino, discussed property, liability, and business interruption coverage, requesting sales data to calculate appropriate coverage. Convertino recommended a $75,000 business interruption limit, assuring Voss it was adequate and promising annual reviews as her business grew. In 2006, Voss moved her business to a larger location and opened new businesses. CHI renewed the policy with the same limit. In 2007 and 2008, the roof leaked multiple times, disrupting business. The business interruption coverage proved insufficient, and Voss sued CHI, alleging negligence in securing inadequate coverage, based on a special relationship.

    Procedural History

    The Supreme Court granted CHI’s motion for summary judgment, dismissing the complaint. The Appellate Division affirmed, disagreeing with the Supreme Court on the special relationship issue but agreeing with the other rationales for dismissal. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s order, denying CHI’s motion for summary judgment.

    Issue(s)

    Whether CHI, as the moving party for summary judgment, met its initial burden of demonstrating the absence of a material issue of fact regarding the existence of a ‘special relationship’ with Voss, thus obligating it to advise on adequate business interruption coverage beyond any specific request.

    Holding

    No, because CHI’s proof did not establish the absence of a material issue of fact regarding a special relationship; thus, summary judgment was inappropriate. The Court of Appeals also held that Voss’s awareness of the policy limits did not negate CHI’s potential negligence and that proximate cause was a question for the factfinder.

    Court’s Reasoning

    The Court of Appeals reasoned that insurance brokers have a general duty to obtain requested coverage or inform the client of their inability to do so, but no continuing duty to advise on additional coverage. However, a ‘special relationship’ can create an additional duty of advisement. Citing Murphy v. Kuhn, the court outlined three situations that might give rise to a special relationship: (1) compensation for consultation apart from premiums, (2) interaction regarding coverage with insured reliance on agent expertise, or (3) a course of dealing that would objectively put agents on notice that their advice was being sought and relied on. Here, Voss’s testimony indicated that Convertino requested sales figures to calculate proper coverage and assured her the $75,000 limit was adequate. He repeatedly pledged annual coverage reviews. The court emphasized that special relationships are the exception, not the norm, and plaintiffs bear the burden of proving its existence and reliance on the broker’s expertise. The court found that Voss’s awareness of the policy limits was irrelevant because the claim was that CHI negligently failed to recommend higher limits. The court also found the issue of proximate cause was one best left to the jury. As such, the Court reversed the order granting summary judgment in favor of the defendant, CHI.

  • Hoffend & Sons, Inc. v. Rose & Kiernan, Inc., 7 N.Y.3d 152 (2006): Duty of Insurance Broker to Obtain Specific Coverage

    7 N.Y.3d 152 (2006)

    An insurance broker has a duty to either obtain the coverage a customer specifically requests or inform the customer of the inability to do so; a general request for coverage is insufficient to trigger this duty, and a “special relationship” requires more than an ordinary broker-client relationship involving payment of premiums.

    Summary

    Hoffend & Sons sued its insurance broker, Rose & Kiernan (R&K), alleging failure to obtain a policy covering property damage to a foreign construction project. Hoffend argued they made a specific request for such coverage and had a special relationship with R&K, imposing a continuing duty to advise. The New York Court of Appeals held that Hoffend failed to demonstrate a specific request for the needed coverage or a special relationship with R&K. Thus, the broker had no duty to obtain the insurance, and the dismissal of the complaint was affirmed.

    Facts

    Hoffend, a theater stage design and construction firm, used R&K as its insurance broker. R&K provided a proposal including a Travelers builders’ risk policy for domestic projects and a Great Northern policy for foreign projects, covering general liability, auto coverage, and workers’ compensation, but not foreign property damage. R&K informed Hoffend that foreign projects required project-by-project discussion. Hoffend contracted with an Argentine firm for a project in Argentina. A Hoffend principal claimed he discussed the project with R&K and indicated it should be “covered.” The contract with the Argentine firm required Hoffend to obtain insurance for labor-related accidents. During the project, a lighting bridge collapsed, causing property damage that was not covered by either policy.

    Procedural History

    Hoffend sued R&K, alleging failure to acquire the requested coverage. The Appellate Division found factual questions regarding the specific request and special relationship but dismissed the complaint because Hoffend received the policy and was charged with knowledge of its contents. Hoffend appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Hoffend made a specific request to R&K for insurance coverage for property damage on its foreign construction project in Argentina?

    2. Whether Hoffend had a special relationship with R&K that created a continuing duty for R&K to advise and procure additional insurance coverage for Hoffend?

    Holding

    1. No, because Hoffend’s recollection of events was vague and did not establish a specific request for coverage of the particular risk involved.

    2. No, because the services provided by R&K did not rise to the level of a special relationship; Hoffend did not compensate R&K for insurance advice apart from premiums, nor did it delegate insurance decision-making.

    Court’s Reasoning

    The Court of Appeals stated that an insurance broker has a common-law duty either to obtain the coverage that a customer specifically requests or to inform the customer of an inability to do so. Citing Murphy v Kuhn, 90 NY2d 266 (1997), the court emphasized that a general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage. Donald Hoffend’s vague recollection that “we are covered” was insufficient to impose liability on R&K. Ruth Abate’s letter stating the relevant policy would “cover [Hoffend’s] U.S. projects only” and foreign coverage remained open for discussion undermined Hoffend’s claim. The court found no special relationship existed, emphasizing Hoffend was a sophisticated commercial entity, and did not compensate R&K for advice beyond premiums. The court distinguished a special relationship from an ordinary broker-client relationship: “Hoffend told R & K in general what insurance Hoffend had decided to purchase. It did not ask R & K what that insurance should be.” The court found that because there was neither a specific request nor special relationship it did not need to determine whether Hoffend’s receipt and opportunity to read the policy barred recovery. The order of the Appellate Division was affirmed.

  • Parker v. City of Cohoes, 73 N.Y.2d 251 (1996): Special Relationship Exception to Municipal Immunity in Domestic Violence Cases

    Parker v. City of Cohoes, 73 N.Y.2d 251 (1996)

    A municipality can be held liable for failure to provide police protection when a special relationship exists between the municipality and the injured party, particularly when an order of protection is in place and the police have direct contact with and make assurances to the victim.

    Summary

    This case concerns the liability of a municipality for failing to protect a woman who was murdered by her husband after police officers responded to a 911 call about a violation of an order of protection. The New York Court of Appeals held that a special relationship existed between the police and the victim, creating a question of fact as to whether the police acted reasonably under the circumstances. The court reversed the Appellate Division’s grant of summary judgment to the defendants, finding that the existence of the order of protection, direct contact between the police and the victim, and the victim’s justifiable reliance on the officers’ affirmative undertaking established the special relationship.

    Facts

    The decedent, Mrs. Parker (Swiggett), had an order of protection against her estranged husband, Anthony Swiggett, due to a history of abuse. On September 5, 1985, she called 911 to report that her husband had violated the order by entering her residence and throwing furniture into the yard. Police officers responded and found the husband at a neighbor’s house. The officers smelled alcohol on his breath. The husband denied entering the residence. The officers contacted their supervisor and were advised that they needed to see the husband inside the premises to arrest him for violating the order of protection. The officers told the decedent that they could not arrest her husband based on the information they had but assured her they would act if further problems arose. After the officers left for a meal break, the decedent was fatally stabbed by her husband. He was later found covered in blood with a copy of the order of protection in his pocket.

    Procedural History

    The plaintiff commenced an action to recover damages for the decedent’s death. The Supreme Court denied the defendants’ motion for summary judgment, finding sufficient evidence of an affirmative duty to act, knowledge that inaction could lead to harm, and justifiable reliance on the defendants’ affirmative undertaking. The Appellate Division reversed and dismissed the complaint, holding that the defendants did not owe a special duty to the decedent and that the police department’s actions were reasonable. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a special relationship existed between the Suffolk County Police Department and the decedent, creating a duty of care.

    2. Whether a question of fact exists regarding the reasonableness of the police department’s actions in securing protection for the decedent.

    Holding

    1. Yes, because the existence of an order of protection, direct contact between the police and the decedent, and the decedent’s justifiable reliance on the officers’ affirmative undertaking established a special relationship.

    2. Yes, because the evidence, when construed in the plaintiff’s favor, raised a question of fact regarding the reasonableness of the officers’ actions in securing protection for the decedent.

    Court’s Reasoning

    The Court of Appeals relied on the precedent set in Cuffy v. City of New York, which outlined the elements of a special relationship: (1) an assumption by the municipality of an affirmative duty to act, (2) knowledge that inaction could lead to harm, (3) direct contact between the municipality’s agents and the injured party, and (4) justifiable reliance on the municipality’s affirmative undertaking. The court reasoned that the order of protection satisfied the first two elements, as it constituted an assumption of an affirmative duty of protection and an awareness that inaction could lead to harm. The Court stated, “The order evinces a preincident legislative and judicial determination that its holder should be accorded a reasonable degree of protection from a particular individual” and “is presumptive evidence that the individual whose conduct is proscribed has already been found by a court to be a dangerous or violent person”. The direct contact requirement was met by the officers’ response to the 911 call. The court also found that the officers’ assurances to the decedent, coupled with their presence at the scene, supported a finding of justifiable reliance. The court emphasized that the reasonableness of the officers’ actions was a question of fact for the jury, stating that such questions “concerning reasonableness are properly left for the fact finder under an examination of all the evidence.” The court distinguished this case from others where a general duty of police protection was alleged, clarifying that the specific circumstances created a special duty to the victim.

  • Kimmell v. Schaefer, 89 N.Y.2d 257 (1996): Establishes Duty of Care for Negligent Misrepresentation in Commercial Contexts

    Kimmell v. Schaefer, 89 N.Y.2d 257 (1996)

    In a commercial context, a duty to speak with care and avoid negligent misrepresentation arises when a special relationship exists between the parties, justifying reliance on the speaker’s words due to unique expertise, a relationship of trust, or knowledge of the information’s intended use.

    Summary

    Plaintiffs sued Defendant, CESI’s CFO, for negligent misrepresentation regarding an investment in a failing co-generation project. Defendant solicited Plaintiffs’ investment, providing overly optimistic projections despite an impending utility rate change that would render the project unprofitable. The New York Court of Appeals held that Defendant owed Plaintiffs a duty of care because his position at CESI, combined with his direct solicitation of Plaintiffs’ investment, created a special relationship that justified their reliance on his representations. This case clarifies the standard for establishing a duty of care in negligent misrepresentation claims in commercial settings.

    Facts

    Defendant, the CFO and chairman of CESI, sought investors for a co-generation project. He recruited Plaintiffs through his accountant, providing them with financial projections that were based on outdated utility rates. Defendant met with Plaintiffs, personally vouching for the investment’s soundness and encouraging them to rely on the projections. Critically, a new utility rate, effective January 1, 1988, eliminated the project’s profitability, a fact not reflected in the projections provided to Plaintiffs. Plaintiffs invested $320,000 each in the project, relying on Defendant’s representations and the projections. The project failed, and CESI went bankrupt.

    Procedural History

    Plaintiffs sued Defendant for damages arising from their failed investment. The Supreme Court found Defendant liable for negligent misrepresentation, holding that a special relationship existed between Defendant and Plaintiffs. The Appellate Division affirmed. The New York Court of Appeals granted Defendant leave to appeal.

    Issue(s)

    Whether Defendant, as CFO and chairman of CESI, owed a duty of care to Plaintiffs, thereby making him liable for negligent misrepresentation regarding the investment’s potential.

    Holding

    Yes, because Defendant’s unique position within CESI, his active solicitation of Plaintiffs’ investment, and his knowledge of their reliance on his representations created a special relationship sufficient to establish a duty of care.

    Court’s Reasoning

    The Court of Appeals stated that liability for negligent misrepresentation requires a duty between the tortfeasor and the injured party. In commercial contexts, this duty arises when “the relationship of the parties, arising out of contract or otherwise, [is] such that in morals and good conscience the one has the right to rely upon the other for information.” (quoting International Prods. Co. v Erie R. R. Co., 244 NY 331, 338). The Court emphasized that not all representations create such a duty, but it can be imposed on those with “unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified.” The Court noted that Defendant, as CESI’s CFO and chairman, had unique access to information about the project’s viability. He actively solicited Plaintiffs’ investment and encouraged their reliance on the projections. He even provided updated projections that failed to account for the recent change in utility rates. The court stated, “Defendant further urged plaintiffs to review and rely on the projections. Indeed, defendant informed Kimmell that he could provide ‘hot comfort’ should plaintiff entertain any reservations about investing.” These actions, the Court reasoned, established a special relationship creating a duty of care. The Court also rejected the defendant’s argument that he was protected by Business Corporation Law §§ 715 and 717, because he failed to adequately assess the competence of the employees who prepared the projections, especially given the widespread publicity surrounding the utility rate changes. Ultimately, the court affirmed the lower court’s ruling because the record supported the existence of a special relationship which under the circumstances here required defendant to speak with care.

  • Mastroianni v. County of Suffolk, 79 N.Y.2d 800 (1991): Establishing a Special Relationship for Municipal Liability

    Mastroianni v. County of Suffolk, 79 N.Y.2d 800 (1991)

    A municipality is not liable for failure to provide police protection to an individual absent a ‘special relationship,’ which requires direct contact and justifiable reliance on the municipality’s assurances.

    Summary

    This case addresses the circumstances under which a municipality can be held liable for failing to provide police protection. The New York Court of Appeals held that a special relationship must exist between the municipality and the injured party for liability to arise. This relationship requires direct contact between the individual and the municipality’s agents, along with justifiable reliance on the municipality’s assurances of assistance. The court found that the decedent in this case had not established such a relationship, precluding the county’s liability for failure to provide police protection.

    Facts

    The case involves a claim against the County of Suffolk for failure to provide adequate police protection. The specific facts regarding the incident leading to the claim are not detailed in this memorandum opinion, but the critical point is that the decedent did not directly contact the municipality’s agents nor rely on any explicit assurances of assistance from the County. Third-party involvement did not satisfy the requirements for establishing a special relationship.

    Procedural History

    The lower court found in favor of the plaintiff. The Appellate Division’s order was appealed to the New York Court of Appeals. The Court of Appeals reversed the Appellate Division’s order, granted the defendant’s motion for judgment notwithstanding the verdict, and dismissed the complaint.

    Issue(s)

    Whether the County of Suffolk can be held liable for injuries resulting from the failure to provide police protection to an individual, absent a ‘special relationship’ between the municipality and the individual, evidenced by direct contact and justifiable reliance?

    Holding

    No, because a municipality is not liable for failure to provide police protection to an individual absent a ‘special relationship’ evidenced by direct contact with the municipality’s agents and justifiable reliance on assurances of action.

    Court’s Reasoning

    The Court of Appeals relied on the established precedent from Kircher v. City of Jamestown and Cuffy v. City of New York, which articulated the ‘special relationship’ doctrine in municipal liability cases. The court emphasized that this special relationship requires more than a general duty to the public; it necessitates direct contact between the injured party and the municipality’s agents, coupled with justifiable reliance on the municipality’s assurances that it would act on the party’s behalf. The court found no evidence of such direct contact or reliance in this case. The involvement of third parties could not substitute for the requirement of direct contact and reliance by the decedent. As the court stated, “Such a relationship cannot be established without proof that the injured party had direct contact with the municipality’s agents and justifiably relied to his or her detriment on the municipality’s assurances that it would act on that party’s behalf.” The court distinguished this case from Sorichetti v. City of New York and Florence v. Goldberg, where the municipality’s conduct deprived the decedent of assistance that reasonably could have been expected from another source, a circumstance not present here. Judge Bellacosa concurred, noting the troublesome application of the special duty rule in domestic violence cases and suggesting that legislative change may be necessary.

  • Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989): Special Duty and Municipal Liability for Police Protection

    Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989)

    A municipality is not liable for failure to provide police protection to a particular individual absent a “special relationship” creating a specific duty, which requires direct contact and justifiable reliance by the injured party on the municipality’s assurances.

    Summary

    Deborah Kircher was abducted and assaulted. Witnesses reported the incident to a Jamestown police officer, who failed to act. Kircher sued the city, alleging negligence. The New York Court of Appeals held that the city was not liable because Kircher did not have a “special relationship” with the police. The court emphasized the need for direct contact between the injured party and the municipality and justifiable reliance on the municipality’s assurances of protection, elements missing in this case because Kircher was unaware of the report made on her behalf. This decision reaffirms the principle that police protection is generally a duty owed to the public at large, not to specific individuals unless a special relationship exists.

    Facts

    Deborah Kircher was abducted from a parking lot. Witnesses, Allen and Skinner, saw Brian Blanco assault and abduct Kircher. They chased Blanco but lost him. Allen and Skinner then reported the incident to Officer Carlson, providing a description of Blanco and Kircher’s car. Carlson, assisting with a disabled municipal vehicle, said he would “call it in” but never did. Kircher was driven to another town, raped, assaulted, and locked in her car’s trunk for 12 hours. Kircher observed the witnesses attempting to follow her vehicle, but was unaware that they had reported the incident to the police.

    Procedural History

    Kircher sued the City of Jamestown and Officer Carlson, alleging negligence. The Supreme Court denied the defendants’ motion to dismiss, relying on Crosland v. New York City Tr. Auth. The Appellate Division reversed, granting summary judgment for the defendants, finding no “special relationship.” The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a municipality can be held liable for negligent failure to provide police protection to a specific individual absent a “special relationship” between the individual and the municipality, specifically requiring direct contact and justifiable reliance by the injured party.

    Holding

    No, because a “special relationship” requires both direct contact between the injured party and the municipality’s agents and justifiable reliance by the injured party on the municipality’s affirmative undertaking, neither of which were present in this case.

    Court’s Reasoning

    The court reaffirmed the rule that a municipality’s duty to provide police protection is generally owed to the public at large, not to specific individuals. A “special relationship” is required for liability, consisting of: (1) an assumption by the municipality of an affirmative duty to act; (2) knowledge that inaction could lead to harm; (3) direct contact between the municipality’s agents and the injured party; and (4) justifiable reliance on the municipality’s undertaking. Here, Kircher had no direct contact with the police and could not have relied on any assurances of assistance. The court stated, “[t]he elements of this ‘special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”.

    The court rejected the argument that the witnesses’ contact with the police could substitute for Kircher’s direct contact, explaining that the purpose of the special duty rule is to limit the class of citizens to whom the municipality owes a duty of protection. Allowing contact between a good Samaritan and the police to satisfy the direct contact requirement would undermine this purpose. Additionally, the court reasoned that reliance is critical because it provides the “essential causative link” between the municipality’s duty and the injury, and absent reasonable detrimental reliance, the consequences of the municipality’s inaction become too speculative. The court emphasized the need to prevent the exception from swallowing the general rule of governmental immunity. The Court reasoned that allowing the action would amount to an expansion of tort liability, which should be a legislative rather than a judicial decision. The court concluded, “Thus, in the absence of facts showing that the City of Jamestown, through its police force, affirmatively undertook to protect plaintiff and plaintiff detrimentally relied on the municipality’s assurances of protection, there is nothing to distinguish this unfortunate plaintiff from the numerous other crime victims for whom, tragically, police assistance has arrived too late.”

  • Sullivan v. J.W. Greer Co., Inc., 64 N.Y.2d 807 (1985): Defining “Special Relationship” for Duty to Warn

    Sullivan v. J.W. Greer Co., Inc., 64 N.Y.2d 807 (1985)

    A successor corporation’s single service call on a machine is insufficient to establish a “special relationship” with the purchaser, thus precluding a duty to warn about defects, particularly concerning equipment not yet installed or present during the inspection.

    Summary

    Thomas Sullivan, an employee of Dunkirk Ice Cream Company, was injured by a fan blade while working on an ice cream hardening machine. He sued J.W. Greer Co., Inc. (Greer), the successor to the machine’s manufacturer, alleging negligence for failing to warn of the machine’s dangers. The New York Court of Appeals held that a single service call by Greer was insufficient to establish a “special relationship” with Dunkirk, which is necessary to impose a duty to warn. The Court also found that Greer had no duty to inspect or warn about equipment (the fans) that were not present or installed during its inspection of the ice cream machine.

    Facts

    J.W. Greer Company manufactured an ice cream hardening machine and sold it to Foremost Dairies in 1962. Dunkirk Ice Cream purchased the machine from Foremost in 1970. After a period of storage, Dunkirk requested J.W. Greer Incorporated (Greer), which had acquired the assets of J.W. Greer Company, to inspect the machine in 1974. During the inspection by Greer’s employee, Francis MacDonald, the cooling fans and the catwalk near the machine were not yet installed or possibly even present. Sullivan was injured in 1976 when a tool he was using struck a fan blade, causing a splinter to hit him in the eye. The fans were manufactured by Joy Manufacturing Company.

    Procedural History

    Sullivan and his wife sued Greer, asserting claims based on strict products liability, breach of warranty, and negligence. The Supreme Court granted summary judgment to Greer on the strict liability and breach of warranty claims but allowed the negligence claim to proceed, based on a purported duty to warn. The Appellate Division reversed, dismissing the remaining negligence claim, concluding that no “special relationship” existed between Dunkirk and Greer to impose a duty to warn. Sullivan appealed to the New York Court of Appeals.

    Issue(s)

    Whether a single service call by a successor corporation is sufficient to establish a “special relationship” with the purchaser of a machine, thus creating a duty to warn of potential dangers associated with the machine and related equipment?

    Whether Greer had an independent duty to warn Dunkirk about the cooling fans even though they were not present or installed during Greer’s inspection of the ice cream machine?

    Holding

    No, because a single service call is insufficient to establish the necessary “special relationship” required to impose a duty to warn under the circumstances.

    No, because Greer’s arrangement to inspect the ice cream machine did not create a duty to inspect or warn about equipment of another manufacturer that was not present or installed at the time of the inspection.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision, emphasizing the importance of a “special relationship” to impose a duty to warn. Citing Schumacher v. Richards Shear Co., 59 NY2d 239, the court reiterated that a duty to warn “commonly is imposed because of some special relationship, frequently economic.” The court found that a single service call was insufficient to establish such a relationship. The court referred to the factors identified in Schumacher, such as service contracts, coverage of the machine under a service contract, service of the machine by the successor corporation, and the successor corporation’s knowledge of defects, to determine the existence of sufficient links. The Court stated that these factors were not met in this case. The Court explicitly stated that it did not need to reach the question of whether Greer could be liable for harm caused by the fan. Regarding the independent duty to warn, the Court reasoned that Greer’s inspection arrangement for the ice cream hardening machine could not give rise to a duty to inspect or warn about equipment (the fans) that was not yet installed—or possibly not even present—when Greer made its inspection.

  • Sorichetti v. City of New York, 65 N.Y.2d 461 (1985): Establishing Municipal Liability for Failure to Protect Based on a Special Relationship

    Sorichetti v. City of New York, 65 N.Y.2d 461 (1985)

    A municipality can be held liable for failure to provide adequate police protection when a special relationship exists between the municipality and the injured party, arising from a protective order, police knowledge of the assailant’s violent history, responses to pleas for assistance, and reasonable expectations of police protection.

    Summary

    Dina Sorichetti and her mother, Josephine, sued the City of New York, alleging negligence by the police department for failing to protect Dina from her father, Frank, who violated a Family Court order of protection. The New York Court of Appeals held that a special relationship existed between the City and Dina, based on the order of protection, the police’s knowledge of Frank’s violent history, Josephine’s pleas for help, and her reasonable expectation of police protection. The court found that the police’s failure to act reasonably under these circumstances could establish municipal liability.

    Facts

    Josephine Sorichetti had a history of abuse from her husband, Frank, leading to multiple orders of protection. On November 6, 1975, a final order of protection granted Frank visitation rights with their daughter, Dina, with pick-up and drop-off at the 43rd precinct. On November 8, Frank threatened Josephine and Dina. On November 9, when Frank was late returning Dina, Josephine pleaded with officers at the 43rd precinct to pick up Dina, presenting the order of protection and detailing Frank’s violent history. Despite Officer Hobbie’s warning to Lieutenant Granello that Frank was a violent man, Granello dismissed the order of protection as “only a piece of paper” and told Josephine to wait. Frank attacked Dina shortly thereafter, causing severe injuries. Frank was later convicted of attempted murder.

    Procedural History

    The plaintiffs sued the City of New York. Special Term denied the City’s motion to dismiss. A jury found in favor of the plaintiffs. The Appellate Division modified the award. The City appealed to the New York Court of Appeals.

    Issue(s)

    Whether a special relationship existed between the City of New York and Dina Sorichetti such that the City owed her a duty of care to protect her from her father’s violence, based on the order of protection, the police department’s knowledge of Frank Sorichetti’s violent history, the response to Josephine Sorichetti’s pleas for assistance, and Mrs. Sorichetti’s reasonable expectation of police protection?

    Holding

    Yes, because the order of protection, combined with the police’s knowledge of Frank’s violent history, their response to Josephine’s pleas for assistance, and her reasonable expectation of police protection, created a special relationship between the City and Dina, giving rise to a duty of care.

    Court’s Reasoning

    The Court of Appeals reasoned that a municipality is generally not liable for failure to provide adequate police protection absent a special relationship with the injured party. This case presented such a special relationship. The court emphasized that Family Court Act § 168 provides authority for peace officers to take into custody those who violate orders of protection, obligating officers to investigate alleged violations. The order of protection, along with police knowledge of Frank’s history, Josephine’s pleas for help, and the Lieutenant’s assurances created a reasonable expectation of protection. The court distinguished this case from Riss v. City of New York, noting that in Riss, the assailant was unknown to the police and had not previously indicated a likelihood of violence. Here, the police were well aware of Frank Sorichetti’s violent propensities. The Court noted: “When the police are made aware of a possible violation, they are obligated to respond and investigate, and their actions will be subject to a ‘reasonableness’ review in a negligence action.” The court concluded that the jury could properly consider whether the police conduct satisfied the duty of care owed to Dina.

  • Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989): Public Duty Doctrine and Special Relationship Exception

    Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989)

    A municipality is not liable for negligence in the performance of a governmental function unless a special relationship exists between the municipality and the injured party, creating a specific duty to protect that individual.

    Summary

    Plaintiff sought to recover damages for injuries sustained when the car she was in struck a loose horse. She claimed the police negligently performed their duties by failing to locate the horse or take adequate precautions to protect motorists after receiving a report of the animal’s presence near a major road. The New York Court of Appeals held that the plaintiff’s action failed because she could not establish the existence and breach of a “special duty” owed to her by the police. The court reasoned that the police had to make a discretionary decision on how to allocate limited resources and that their actions did not create a special relationship with the plaintiff.

    Facts

    Police received a report of a loose horse near a major road.

    The police decided to search for the horse but were unable to find it with the limited personnel available.

    Plaintiff was injured when the car in which she was a passenger struck the loose horse while traveling at high speed.

    Plaintiff sued, alleging the police were negligent in carrying out their duties.

    Procedural History

    The trial court initially entered a verdict in favor of the plaintiff.

    The trial court then vacated the verdict and dismissed plaintiff’s action.

    The Appellate Division reversed the trial court’s decision.

    The New York Court of Appeals reversed the Appellate Division’s order and reinstated the trial court’s dismissal.

    Issue(s)

    Whether the plaintiff can recover against the municipality for negligent performance of a governmental function when no special relationship existed between the plaintiff and the municipality.

    Holding

    No, because the plaintiff failed to establish the existence and breach of a “special duty” owed to her by the police.

    Court’s Reasoning

    The Court of Appeals applied the public duty doctrine, which shields municipalities from liability for negligence in the performance of governmental functions unless a special relationship exists between the municipality and the injured party. A special relationship requires: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s undertaking.

    The court found that the plaintiff’s claim was essentially that the police should have allocated their limited resources differently. The court stated, “Faced with a report of a loose horse near a major thoroughfare, the police either had to locate the horse, stop traffic on the road, or take other precautions to protect motorists. With only a few officers immediately available, there was insufficient personnel to pursue more than one course of action.”

    The court distinguished this case from cases like De Long v. County of Erie, 60 N.Y.2d 296, where a special relationship was found due to the plaintiff’s direct reliance on specific assurances from the police.

  • De Long v. City of Buffalo, 59 N.Y.2d 302 (1983): Establishing Municipal Liability Through Special Relationship

    De Long v. City of Buffalo, 59 N.Y.2d 302 (1983)

    When a municipality establishes a special emergency service, accepts a call for assistance, and assures the caller help is on the way, it creates a special relationship with the caller and has a duty to exercise ordinary care; failure to do so can result in municipal liability.

    Summary

    Amalia De Long called 911 during a burglary. The complaint writer negligently recorded the address and dispatched police to the wrong location. Despite officers reporting no such address, no follow-up was initiated. De Long was later found stabbed and died from her injuries. Her estate sued the City of Buffalo and Erie County. The court held that by creating the 911 service and assuring De Long help was coming, the municipality established a special relationship, creating a duty of care. The court also addressed the admissibility of expert testimony regarding the monetary value of a homemaker’s services in wrongful death cases, finding such testimony admissible.

    Facts

    Amalia De Long called 911 reporting a burglary at her home at 319 Victoria Boulevard in Kenmore, NY. The Erie County complaint writer incorrectly recorded the address as 219 Victoria Avenue in Buffalo. The Buffalo Police Department dispatched officers who found no such address and reported that the highest number on Victoria Avenue was 195. The dispatcher cleared the call without further investigation. De Long was found stabbed and later died. Erie County and the City of Buffalo jointly operated the 911 service; the call was routed to Buffalo Police headquarters and handled by a county employee. Standard procedures for address verification were not followed.

    Procedural History

    De Long’s husband, as executor, sued the City of Buffalo and Erie County. The trial court found both defendants 50% liable, awarding $200,000 for conscious pain and suffering and $600,000 for wrongful death. The Appellate Division affirmed the judgment, with two justices dissenting on the damages award. The defendants then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the establishment of a 911 service and the assurance of assistance to a caller creates a special relationship between the municipality and the caller, thus establishing a duty of care.
    2. Whether expert testimony on the monetary value of a housewife’s services is admissible in a wrongful death action to determine pecuniary damages.

    Holding

    1. Yes, because by creating a special emergency service, accepting the call, and assuring help was on the way, the municipality established a special relationship with the caller, giving rise to a duty to exercise ordinary care.
    2. Yes, because expert testimony can help clarify an issue calling for professional or technical knowledge beyond the ken of the typical juror and aid the jury in evaluating the housewife’s services and dispelling the notion that what is provided without financial reward may be considered of little or no financial value in the marketplace.

    Court’s Reasoning

    The Court reasoned that this case differs from those where municipalities are generally not liable for failing to protect the public from criminal acts. Here, the municipality established a special emergency service intended to be more efficient than normal police services. The victim was encouraged to use this service. The affirmative assurance that help was on the way created a justifiable reliance, potentially influencing the victim’s decision not to seek other assistance. The court cited Florence v. Goldberg and Garrett v. Holiday Inns as examples of municipalities being held liable for voluntarily assumed duties. The Court quoted Moch Co. v. Rensselaer Water Co.: “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.” The court stated, “In this case the decision had been made by the municipalities to provide a special emergency service which was intended and proclaimed to be more efficient than normal police services… In addition, and most significantly, the victim’s plea for assistance was not refused. Indeed she was affirmatively assured that help would be there ‘right away’… it cannot be said as a matter of law that this assurance played no part in her decision to remain in her home and not seek other assistance. Unfortunately, it only increased the risk to her life.” Regarding expert testimony on the value of a housewife’s services, the Court determined that while jurors possess general awareness of these services, they lack knowledge of their monetary equivalent. Expert testimony can aid in evaluating these services, dispelling the misconception that non-compensated services have little financial value. The court emphasized that the admissibility of expert testimony lies within the trial court’s discretion.