DeLong v.Erie County
New York Supreme Court,1982
455 N.Y.S.2d 887,89 A.D.2d 376
HANCOCK,JUSTICE: ….Before her death,Amalia DeLong,her husband,and their three young children resided at 319 Victoria Boulevard in the Village of Ke-n more,a suburb of Buffalo located in Erie County.In October,1976,the Village of Kenmore was one of the four communities outside of Buffalo fully served by the 911 emergency telephone system operated by the Central Police Services,an agency of Erie County,with the active assistance and cooperation of the Buffalo Police Headquarters in downtown Buffalo.At 9:29:29 in the morning of October 25,1976 Amalia DeLong dialed 911 on her telephone and was immediately connected to the 911 room.The transcript of her call is as follows:
The complaint writer recorded the address on the complaint card as “219 Victoria” – not “319 Victoria.” The call had lasted 14 seconds.[The evidence regarding police response time indicated that the decedent’s life might have been saved if the police had not been misdirected to a nonexistent address.] As a result of the failure of proper police response,Amalia DeLong had received seven knife wounds: to the left side of the neck,the left side of the head,the second finger of the right hand,the nail of the third finger on the left hand,the thumb of the left hand,and a wound to the left shoulder.The laceration on the neck was fatal.I t was deep and had severed the jugular vein and carotid artery on the left.The cuts on the fingers were described as being of a “defensive type.”
The police in searching the house found evidence of a savage attack….
The purpose of the 911 emergency or “hot line” system is to assist the delivery of police services to the people in the communities served (determined by whether the telephone exchanges in the communities are such that dialing 911 will give an automatic connection with the 911 room at Buffalo police headquarters)….
On the morning of October 25,the complaint writer,in addition to mistakenly recording the address on the complaint card as 219 instead of 319 Victoria,failed to follow the instructions in four respects: (1) he did not ask the name of the caller;(2) he did not determine the exact location of the call;(3) he did not address the caller by name;(4) he did not repeat the address.
The operating procedures in effect on October 25,1976 also called for follow-up action if,as with the DeLong call,the report came back to the dispatcher:“No such address.” In such event,the dispatcher was required to notify the complaint writer or the 911 lieutenant (the Buffalo police lieutenant on duty in the 911 room) so that the tape recording of the call could be replayed,the Haines Directory and the street guides consulted,and other communities having street names identical or similar to the street name given by the caller immediately notified.On Amalia DeLong’s call,no follow-up of any kind took place.The call was treated as a fake.(https://www.daowen.com)
Our discussion of the questions raised concerning liability must start with Riss v.City of New York,in which the court found no legal responsibility for the tragic consequences of the city’s failure to furnish police protection despite proof of Linda Riss’ repeated and agonized pleas for assistance.In an opinion by then Associate Judge Breitel,the court,with one dissent,concluded: “[T]here 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.” This fundamental rule remains the law when a relationship is created between the police and an individual which gives rise to a special duty,the municipality loses its governmental immunity and liability may result.Courts have found such a special duty to be owing“to informers,undercover agents,persons under court orders of protection,and school children for whom the municipality has assumed the responsibility of providing crossing guards….”
It is not the establishment of the emergency call system to serve the Village of Kenmore,standing alone,which creates the duty.It is the holding out of the 911 number as one to be called by someone in need of assistance,Amalia DeLong’s placing of the call in reliance on that holding out,and her further reliance on the response to her plea for immediate help: “Okay,right away.” This is not a mere failure to furnish police protection owed to the public generally but a case where the municipality has assumed a duty to a particular person which it must perform“in a nonnegligent manner,[although without the] voluntary assumption of that duty,none would have otherwise existed.” The complaint writer’s acceptance of the call,his transmittal of the complaint card to the dispatcher and the dispatcher’s radio calls to the police cars were affirmative actions setting the emergency machinery in motion.This voluntary assumption of a duty to act carried with it the obligation to act with reasonable care.
But,defendants remind us,failing to fulfill an undertaking to provide police protection does not result in municipal liability unless it be shown that the police conduct in some way increased the risk.They maintain that the evidence does not establish that the conduct had “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.” In other words,defendants argue,although the hand may have been set to the task and withdrawn,it has resulted in no harm.We disagree.
While there could in this case be no direct evidence that Amalia DeLong relied to her ultimate detriment on the assurance of police assistance,the circumstantial evidence strongly suggests that she did so.Instead of summoning help from the Village police or from her neighbors (one of whom was a caption in the Kenmore Police Department),she waited for the response to her 911 call.Instead of taking her baby and going out the front door where she would have been safe,she remained defenseless in the house….
Finally,contrary to the city’s contentions,we view the evidence as supporting the jury’s conclusion that the city and county were equally at fault.We find no merit in defendants’ other arguments on the liability issue.
[The court found that the jury’s award of $200,000 for pain and suffering was “within reasonable bounds.” The period of time of decedent’s fatal encounter with her assailant was between 9:30 and 9:42 a.m.]
Accordingly,the judgment insofar as it awards damages for conscious pain and suffering,should be affirmed.
Judgment affirmed with costs.