Riss v.City of New York
New York Court of Appeals,1968
22 N.Y.2d 579,293 N.Y.S.2d 897
[The description of the facts in this case is taken from the dissenting opinion of JUDGE KEATING:
Linda Riss,an attractive young woman,was for more than six months terrorized by a rejected suitor well known to the courts of this State,one Burton Pugach.This miscreant,masquerading as a respectable attorney,repeatedly threatened to have Linda killed or maimed if she did not yield to him: “If I can’t have you,no one else will have you,and when I get through with you,no one else will want you.” In fear for her life,she went to those charged by law with the duty of preserving and safeguarding the lives of the citizens and residents of this State.Linda’s repeated and almost pathetic pleas for aid were received with little more than indifference.Whatever help she was given was not commensurate with the identifiable danger.On June 14,1959 Linda became engaged to another man.At a party held to celebrate the event,she received a phone call warning her that it was her “last chance.” Completely distraught,she called the police,begging for help,but was refused.The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face.Linda was blinded in one eye,lost a good portion of her vision in the other,and her face was permanently scarred.After the assault the authorities concluded that there was some basis for Linda’s fears,and for the next three and one-half years,she was given around-the-clock protection.]
Linda Riss
BREITEL,J.This appeal presents,in a very sympathetic framework,the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection….The issue arises upon the affirmance by a divided Appellate Division of a dismissal of the complaint,after both sides had rested but before submission to the jury….
[T]his case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers.The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed.For the courts to proclaim a new and general duty of protection in the law of tort,even to those who may be the particular seekers of protection based on specific hazards,could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits.This is quite different from the predictable allocation of resources and liabilities when public hospitals,rapid transit systems,or even highways are provided.
Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities,there should be a legislative determination that that should be the scope of public responsibility….
When one considers the greatly increased amount of crime committed throughout the cities,but especially in certain portions of them,with a repetitive and predictable pattern,it is easy to see the consequences of fixing municipal liability upon a showing of probable need for and request for protection.To be sure these are grave problems at the present time,exciting high priority activity on the part of the national,State and local governments,to which the answers are neither simple,known,or presently within reasonable controls.To foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts.
For all of these reasons,there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts,in the absence of legislation,to carve out an area of tort liability for police protection to members of the public.Quite distinguishable,of course,is the situation where the police authorities undertake responsibilities to particular members of the public and expose them,without adequate protection,to the risks which then materialize into actual losses (Schuster v.City of New York,5 N.Y.2d 75).(https://www.daowen.com)
Accordingly,the order of the Appellate Division affirming the judgment of dismissal should be affirmed.
KEATING,JUDGE (dissenting).It is not a distortion to summarize the essence of the city’s case here in the following language: “Because we owe a duty to everybody,we owe it to nobody.” … To say that there is no duty is,of course,to start with the conclusion.The question is whether or not there should be liability of the negligent failure to provide adequate police protection.
The foremost justification repeatedly urged for the existing rule is the claim that the State and the municipalities will be exposed to limitless liability.The city invokes the specter of a “crushing burden” ….
The fear of financial disaster is a myth.The same argument was made a generation ago in opposition to proposals that the State waive its defense of “sovereign immunity.” The prophecy proved false then,and it would now….
Another variation of the “crushing burden” argument is the contention that,every time a crime is committed,the city will be sued and the claim will be made that it resulted from inadequate police protection.Here again,is an attempt to arouse the “anxiety of the courts about new theories of liability which may have a far-reaching effect”….
The instant case provides an excellent illustration of the limits which the courts can draw.No one would claim that,under the facts here,the police were negligent when they did not give Linda protection after her first calls or visits to the police station in February of 1959.The preliminary investigation was sufficient.If Linda had been attacked at this point,clearly there would be no liability here.When,however,as time went on and it was established that Linda was a reputable person,that other verifiable attempts to injure her or intimidate her had taken place,that other witnesses were available to support her claim that her life was being threatened,something more was required – either by way of further investigation or protection – than the statement that was made by one detective to Linda that she would have to be hurt before the police could do anything for her….
More significant,however,is the fundamental flaw in the reasoning behind the argument alleging judicial interference.It is a complete over-simplification of the problem of municipal tort liability.What it ignores is the fact that indirectly courts are reviewing administrative practices in almost every tort case against the State or a municipality,including even decisions of the Police Commissioner….
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