Riss v. City of New York , 278 N.Y.S.2d 110 ( 1967 )

Steuer, J. P.

It would serve no purpose to iterate the facts leading up to the tragic incident which resulted in the horrible injuries suffered by this plaintiff. Sufficient is set out in the dissenting opinion.

The question is whether plaintiff raised an issue calling for submission to a jury as to whether the defendant, through its Police Department, was negligent. The claimed negligence is the failure to provide personal police protection to plaintiff. It must be conceded that, absent special circumstances, there is no duty resting on a municipality or other governmental body to provide police protection to any particular person on his request (Murrain v. Wilson Line, 270 App. Div. 372, affd. 296 N. Y. 845). The noted case, heavily relied on by plaintiff and the dissenting opinion, of Schuster v. City of New York (5 N Y 2d 75), does not change this. It merely fixes one of the special circumstances in which a failure to .supply such protection may be actionable. Such circumstance is where the police know that the person seeking protection has informed on a dangerous criminal and has been threatened on account thereof. This was held to constitute a special circumstance not only because unusual danger could readily be seen to be imminent but also because a failure to provide protection under such circumstances would discourage citizens from giving information to the police and hence decrease the efficiency of law enforcement. No such element is here present.

Admittedly this is not the only set of circumstances in which the failure to supply protection would be a breach of duty owed by the municipality. And we do not wish to be understood as invoking any such limitation. Undoubtedly there would be liability if a .police officer witnessed an assault and failed to go to the protection of the person threatened; and also where the authorities have recognized a present, immediate and serious danger to the extent of supplying protection and thereafter abandon the person protected before the threat of imminent danger has abated (Isereau v. Stone, 207 Misc. 941).

Here the evidence shows that the police were told of the actions of a disappointed suitor who, it is true, made extravagant threats. In addition, they were told of certain incidents which might be construed as activating those threats, though actual proof of the perpetration of those acts by the one threatening was lacking. They were confronted with the fact that the person accused was a lawyer in good standing, and that when the plaintiff made a charge against him in court it was withdrawn on the hearing. It must be common knowledge that unfavored swains are not infrequently tempted to relieve their frustrations by predictions of dire results to the object of their attentions; and that the timorous make frequent applications for protection for this, as well as a variety of other reasons, real or imagined. It would not only be impracticable but impossible to protect against all these contingencies.

Here, events proved the police to be wrong. The suitor was either so depraved or demented that he carried out his threats in a manner that can only evoke revulsion to himself and the greatest pity for his victim. But this is not to say that there was negligence in failing to foresee these consequences. Otherwise, in every case of reported threat the police would have to determine the probability of injury at their peril. It is submitted that the facts brought out on this trial do not show the presence of such imminent danger that extraordinary police activity was so indicated that the failure to take it can be deemed unreasonable conduct. The balancing factors, plus the fact that complaints continued over a considerable period without active implementation by dangerous conduct, negate the contention that the failure to afford personal protection in excess of that accorded to members of the community generally was negligence. Something in addition by way of proof of an immediate danger would have to be shown.

Plaintiff also complains of prejudicial treatment by the Trial Judge. We agree that certain rulings, and particularly the manner in which they were made, did not add to the appearance of a fair trial. But as the complaint was dismissed, no prejudice could have resulted. As to exclusions of evidence, we have not been shown, by offer of proof or otherwise, that what was required to make out a case was excluded.

The dismissal of the complaint should be affirmed.