(Part 4) One More: Then-Associate Judge Wilson Versus the Majority's "Special Duty" Rule

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Shortly before his elevation to Chief Judge, Rowan Wilson made clear in his dissenting opinion last year, in Howell v City of New York (November 22, 2022), that the majority's application of the "special duty" rule is a true abomination. Sorry, but it's hard to characterize it any other way. Wilson did manage to express it more elegantly.

First, the aftermath:

Several weeks ago, on April 3rd of this year, Dora Howell's body was found in a crawl space under the basement of the residence in which she lived. 

Here's the background:

Andre Gaskin, Dora Howell's ex-boyfriend, lived in an apartment below hers. He had been abusing her for 15 years. 

During that time, Dora Howell had called the police numerous times and had obtained several orders of protection against Gaskin. Following an assault in March of 2008, which resulted in her hospitalization, Howell obtained the first order of protection. Within the next several weeks, however, Howell contacted the police nine separate times to say that Gaskin was violating the order, coming to her apartment, and assaulting her. In the course of the next several months and subsequent orders of protection, Howell was repeatedly assured by the responding officers that they would take care of the situation and remove Gaskin from the premises. They never did. Gaskin continued to live in the apartment below hers, continued to assault her, and the responding officers continued to leave Gaskin in the building.

In November of that year, Gaskin stopped Dora Howell from leaving their building and dragged her by the hair up to his 3rd-floor apartment. When she went to the window to yell for help, he pushed her out. She was found on the pavement screaming for help and unable to move with serious injuries to her pelvis, hip, and spine. She was hospitalized for over a month and underwent multiple surgeries.

Eventually, Gaskin was arrested, he pleaded guilty to assault and violating orders of protection, and he was sentenced to a maximum of seven years in prison. He was released in 2014.

Dora Howell brought an action against the City and the responding officers for their negligence in failing to enforce the orders of protection and for failing to protect her against Gaskin's repeated assaults. In 2022, on the appeal of her case to New York's highest court, the majority held that the "special duty" rule required that her complaint be summarily dismissed.

Five months later, Dora Howell, who had been missing, was found dead.

The Court of Appeals Decision:

In an unsigned memorandum decision, a 4-2 majority ruled that Dora Howell was owed no "special duty" by New York City and its responding officers. Over the dissenting opinions by then-Judge Rowan Wilson and Judge Jenny Rivera, the majority explained:

Over the last several decades, this Court has established an approach to such cases that permits recovery against the government only in a narrow set of circumstances. Although typically applied to tragic facts befalling an individual, the special duty rule's purpose is to permit the government to protect its citizenry as a whole by allocating its resources in a manner that best promotes public welfare.

Yes, as the majority noted, "this Court has established [that] approach." This "special duty" rule is the Court's own. It is not mandated by legislation or by any authority other than the Court itself. As such, nothing prevents the Court from refining, tailoring, or even doing away with this rule--again, of its own making--in the interests of the most basic fairness and decency.

Nevertheless, where basic fairness and decency would surely have dictated a different result, the majority rigidly applied the rule to its questionable interpretation of the facts:

[The responding police officers] did not voluntarily assume a special duty in plaintiff's favor...[T]he police were not on the scene or in a position to provide assistance if necessary, nor had they promised to 'provide assistance at some reasonable time.' In these circumstances, plaintiff could not have justifiably relied on any promises made or actions taken by defendants.

Then-Associate Judge Wilson's Dissent:

Not surprisingly, Wilson saw things much differently. He might not have expressed himself as heatedly as other justified dissenters have. (See e.g., Judge Bellacosa's dissent in Kircher v. City of Jamestown [1989] [the majority held that police failure to take any action after promising to rescue a kidnapped woman created no "special duty" to her]; and Judge Jasen's dissent in Tebbutt v. Virostek [1985] [the majority held that the physician who negligently killed the unborn child owed no duty to the expecting mother].) Nevertheless, Wilson's dissent leaves no doubt that he viewed the majority's decision as an outrage.

As he customarily does in his opinions, Wilson began in clear, unmistakable terms, setting forth what the case was really about, without resort to legalese that would cloud what was at stake:

Passersby found Dora Howell face down on the pavement outside her apartment building, screaming for help and unable to move. Ms. Howell's knee, pelvis, and hip were all broken, and her spine was fractured. She remained in the hospital for over a month undergoing surgeries to treat her extensive injuries. How did this happen?

Unfortunately, such incidents are far too common. Ms. Howell's ex-boyfriend, Andre Gaskin, dragged her by the hair into his third-floor apartment, a floor above hers, and physically assaulted her. When Ms. Howell went to the window yelling for someone to call the police to help her, Mr. Gaskin said, "You want help? I'll send you for help," and threw her out of the window.

Mr. Gaskin had violently assaulted Ms. Howell before, beginning when she was pregnant with their child. The first time he assaulted her, he threw her on the floor and kicked her stomach, causing her to bleed and require hospitalization. On the basis of that assault, Ms. Howell obtained an order of protection against Mr. Gaskin, requiring him to stay away from and not communicate with her. Based on Mr. Gaskin's subsequent conduct, Ms. Howell obtained seven additional orders of protection against him, the most recent of which issued less than two months before Mr. Gaskin threw her out of the window. How did it happen that a woman who obtained eight orders of protection against the same abuser wound up unprotected?

Wilson continued, again in clear and unmistakable terms, detailing the underlying basis for Dora Howell's claim against the City and its officers:

Orders of protection are supposed to mean something. Ms. Howell called the police to report violations of the September 26th order on October 7, October 15, October 18, October 29, November 5, November 6, November 12, and November 13—each time explaining that Mr. Gaskin had violated the order of protection. Three times in the weeks leading up to this incident, the same two police officers...responded to her calls. As explained below, they assured Ms. Howell that they were handling the situation, yet completely failed to do so. Their actions and inactions rendered Ms. Howell's multiple orders of protection meaningless, constituting both a dereliction of their duties and an affront to the courts.

Having laid bare the facts in no uncertain terms, Wilson did the same for the law applicable to the eight orders of protection Dora Howell obtained against Gaskin:

[O]ur legislature in 1994 required officers to arrest persons in violation of domestic violence protective orders. The legislation removed all discretion from officers: even if a victim of domestic violence begs the officers not to arrest the violator, the police must arrest him. On numerous occasions, Mr. Gaskin was present at the scene when the police arrived and observed him in violation of the orders of protection. Each time they refused to arrest him in the face of a statutory requirement that they do so.

I would hold that CPL 140.10 (4) (b) [The Domestic Violence Intervention Act of 1994] establishes a statutory special duty for holders of domestic violence protective orders....Ms. Howell, who had eight domestic violence orders of protection against Mr. Gaskin ordering him to stay away, is a member of the class for whose benefit CPL 140.10 (4) was enacted: victims of domestic violence who have obtained orders of protection.

And Wilson directly addressed the majority's rejection of any duty owed by the City and its officers to Dora Howell:

Most fundamentally, victims of domestic violence who have obtained orders of protection from our courts are a limited class of persons justifiably entitled to rely on the DVIA's mandatory arrest provision. How could it be otherwise? The majority's holding—that despite the multiple orders of protection and emphatic action by the legislature and Governor requiring the arrest of violators of such orders, two officers are able to countermand all three branches of government and render the victim's reliance on the law "unjustifiable" —is baffling. 

Wilson's concluding words reminded the majority that its "baffling" decision was not dictated by any authority other than its own interpretation of the Court's own common law which, in the Court's finest tradition, has typically been refined in the interest of basic decency and equity:

Here, the majority holds that a victim of domestic violence, granted special protections by the courts and legislature, may not recover damages when officers violate the law. The genius of the common law is that it does not require that outcome, but allows our court to adjust the common law doctrines of negligence and special duty as fairness and justice require.

The majority's ruling is indeed as baffling to me as it was to Judge Wilson (and to Judge Jenny Rivera, who also dissented)--as well as unnecessarily dogmatic and callous, especially in light of the overarching policy of the Domestic Violence Intervention Act. One hopes, and I make no bones that I do, that with Rowan Wilson now presiding over the Court of Appeals as Chief Judge, he might be able to mitigate the Court's abominable "special duty" rule.

Similarly, referring back to other Wilson dissents we've discussed in this series, one hopes--again meaning me--that the Court also mitigates, refines, dilutes, distinguishes, or just outright overrules some recent case law on the right to counsel, wrongful convictions, worker rights, and other areas of the law, where the Court seems to have taken a reactionary turn in the last several years.

(Part 3) NY Chief Judge Nominee/Appointee Rowan Wilson

Protecting the rights of New Yorkers is my top priority.

--Rowan D. Wilson,

upon his nomination to be Chief Judge

(Yes, it's been a few weeks. End-of-semester review sessions, exams, grading, and other pre-occupations.  Indeed, some of the latter were following and interviewing on the selection of the new Chief Judge and on filling the resulting Associate Judge vacancy. In case of interest, here are links to a few of those interviews: How might Rowan Wilson operate as Chief Judge of NY?, PBS, New York Now, 4/21/23 [tv/video: https://www.pbs.org/video/how-might-rowan-wilson-operate-chief-judge-ny-umkeke/]; State's top court poised for shakeup, Capitol Pressroom, 4/14,23 [radio/podcast: https://twitter.com/CapPressRoom/status/1646932620419145742]; NY's Next Chief Judge with Prof. Vin Bonventre, Albany Law School Podcast, 4/6/23 [podcast: https://podcasts.apple.com/us/podcast/nys-next-chief-judge-with-prof-vin-bonventre/id1504271732?i=1000607712208].)

In Part 1, we traced Rowan Wilson's eventual nomination by former Governor Andrew Cuomo to the Court of Appeals on Wilson's 6th inclusion on the nominating commission's list between 2013 and 2017. In Part 2, we looked at a couple of Wilson's representative dissenting opinions in criminal cases--those "pleas for greater justice, decency, and wisdom," where he apparently "felt compelled by principles higher than consensus and unison to protest publicly what [his] colleagues had decided." (See Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J. 23 (Nov./Dec. 2022).

Let's now look at a couple of Wilson's (pre-Chief Judge) dissents in civil cases.

Cutaia v. Board of Managers of 160/170 Varick St. Condominiums, 38 N.Y.3d 1037 (2022)

In a 4-3 decision--issued in an unsigned memorandum consisting of two superficial paragraphs--the majority reversed an Appellate Division ruling that sided with a seriously injured worker. In short, while he was working on a building renovation project, the worker fell from a concededly inadequate ladder after coming into contact with live electric wires. According to the majority, because the worker could not recollect anything about the fall and his expert's affidavit was supposedly conclusory, the worker failed to establish the proximate cause for his injuries.

Then-Judge Wilson, joined by Judges Jenny Rivera and Shirley Troutman, disagreed with the majority's dismissive treatment of the injured worker's claim. As Wilson put it, the worker's case was "a prototypical example of the situations the legislature sought to remedy through Labor Law § 240 (1)." He explained:

[The worker] was provided an inadequate ladder for his job, and that inadequate ladder was a proximate cause of his fall-related injuries. Mr. Cutaia need demonstrate nothing else to obtain partial summary judgment under Labor Law § 240 (1); the inquiry stops there.

Judge Wilson detailed what happened:

Michael Cutaia was a plumber. His employer directed him to reroute pipes located above a drop ceiling that contained both pipes and electrical wiring. Mr. Cutaia was provided an A-frame ladder for the work…To access the pipes, Mr. Cutaia had to close the ladder and lean it against a wall. When he climbed the closed ladder and reached for a pipe, he was shocked by an exposed electrical wire and fell to the ground….

Mr. Cutaia was severely injured. He was burned on his left hand and the left side of his chest down to his hip, causing some scarring. He also suffered herniated discs in his neck, bulging discs in his lower back, and a torn labrum in his shoulder, resulting in chronic pain in his shoulder, neck, and lower back and numbness in his hands and feet. He has subsequently had three shoulder surgeries and a superior cervical fusion and discectomy in his neck.

Wilson made clear how the law and the litigation supported the worker:

Mr. Cutaia sued to recover for his injuries. He alleged violations of Labor Law § 240 (1), which requires contractors and owners to provide adequate safety devices to persons engaged in elevation-related work. [It] "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). A violation of the statute gives rise to absolute liability (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 [1985])….

Contrary to the majority's assertion…uncontroverted evidence established that Mr. Cutaia was given an A-frame ladder [] and could only use that ladder in an unsafe manner (folded and leaned against a wall) to perform the work he was assigned. When Mr. Cutaia used the ladder, he fell and was injured by the fall….Even the defendants admit that the ladder here was an inadequate safety device for the assigned task, because it could not be used as designed for that task...

Mr. Cutaia submitted an expert affidavit averring that the failure to provide an adequate ladder or other safety devices was a proximate cause of his injury…. The defendants tendered no contrary expert opinion or other proof to controvert Mr. Cutaia's expert [and] during oral argument, counsel for defendants agreed that Mr. Cutaia bore no burden to show that some other safety device would have better protected him.

 Wilson's dissent--his "plea for greater justice, decency, and wisdom"--is all the more compelling when one considers that the bare majority went out of its way, in an unsigned writing no less, to overrule an Appellate Division decision that had sided with the injured worker.

Ferreira v. City of Binghamton, 38 NY3d 298 (2022)

In the past, dissenting Judges have condemned the patent injustices wrought by the Court's so-called "special duty" rule. For example, a municipality was held to be immune from liability to a woman who was brutally beaten and raped because it had no "special duty" to her, even though the city's police officer had utterly failed to take action after he assured witnesses of the woman's kidnapping that he would do so. (Kircher v. City of Jamestown, 74 N.Y.2d 251 [1989] [Judges Hancock and Bellacosa dissented]) The Court similarly ruled that the same immunity and absence of "special duty" applied where the city's medical examiner failed to disclose corrected autopsy findings--that the decedent was not the victim of a homicide--even though the plaintiff was enduring a continued investigation for murder that wreaked havoc on his family and health. (Lauer v. City of New York, 95 N.Y.2d 95 [2000] [Judges G.B. Smith and Bellacosa dissented].)

Last year, in Ferreira, instead of curbing the "special duty" rule or at least keeping it within its traditional limits, the Court actually extended it.

The case involved a plaintiff who was shot and seriously injured by a police officer who mistakenly believed he was armed. The shooting occurred in the course of a no-knock "dynamic entry" by a SWAT team into a residence in which the unarmed plaintiff had been sleeping on the living room couch. On appeal in federal litigation applying New York law, the Second Circuit certified a question to the Court of Appeals, asking whether the state's "special duty" rule applied to the negligent actions of municipal employees, or only to their failures to take protective action.

In a 5-2 decision, the Court of Appeals majority rejected the notion that "a special duty is required only in cases where the municipality allegedly fails to protect a plaintiff [and] does not apply where a municipal employee inflicts the injury in question." Stated otherwise, for the "special duty" requirement, the majority rejected any "distinction between affirmatively inflicted injuries and those occasioned by a failure to adequately respond or protect." 

Then-Judge Wilson, joined by Judge Rivera, protested the majority's expansion of the "special duty" requirement and took issue with the entire framework of the rule that the majority embraced. As he put it:

The "special duty" is not, as the majority suggests, a restrictive requirement that applies to all negligence suits against governmental entities acting in a governmental capacity. Instead, it arises where the governmental actor has, through its actions as to a specific, identifiable individual, undertaken a duty it would not otherwise have.

Wilson continued:

We have typically considered the "special duty" doctrine where a municipality has failed to protect the plaintiff from harm caused by a third party. The "special duty" inquiry can arise in such situations because a general duty municipalities may have to protect the public does not automatically give rise to an ordinary duty owed to a specific individual...[W]here the provision of government services is insufficient to support an ordinary duty necessary for a negligence claim to proceed, we then have asked whether a special duty exists. 

Wilson further explained that the majority's own analysis undermined its position:

Indeed, the majority's own characterization of the special duty doctrine exposes its error. The majority states that "[t]he special duty doctrine thus developed `to rationally limit the class of citizens to whom the municipality owes a duty of protection,'" citing Kircher v City of Jamestown, 74 NY2d 251, 258 [1989]). The cases cited by the majority for its descriptions of the special duty doctrine all are cases that involve claims that governmental actors failed in their duty to protect an individual from third-party harm. [But w]hen a governmental actor directly and negligently injures someone, no "duty of protection" is involved—it is a duty not to inflict injury.

Wilson then took aim at the majority's warning of municipal exposure to "open-ended liability of enormous proportions" in the absence of its formulation of the "special duty" rule:

[H]olding the government liable in negligence for its own acts that directly cause injury serves the same socially beneficial purpose as with private actors: placing an economic incentive to take reasonable steps to avoid unnecessary harm on the party able to avoid it. To the extent a different cost-benefit calculus pertains to some types of government action that cause direct injury, that is handled through the separate application of governmental immunity, not contortions of negligence law.

Finally, decrying the majority's reactionary "special duty" jurisprudence as contrasted with its prouder tradition, Wilson concluded:

Where we could have revived the proud tradition of Chief Judge Cardozo's Court in advancing tort law to meet modern needs by announcing an ordinary duty of the police to use due care in planning and executing no-knock warrants, the majority has littered its opinion with unsound conclusions suggesting that police activity—or any nonproprietary governmental negligence—can proceed only by establishing a special duty. Instead of advancing the law, we become a regressive outlier. Other states do not require any showing of a special duty when a governmental actor has directly harmed the plaintiff.

I have written previously about the Court's rigid application of the "special duty" rule to immunize government from responsibility for its wrongdoing, regardless of the heartless consequences, as though the rule were some near-religious precept. (See e.g., the discussion of Judge Joseph Bellacosa's dissent in the aforementioned Kircher case in my Great Dissents article cited above.) I have not withheld my view that the Court's devotion to the rule has resulted in atrocious injustices. 

We have been considering some of then-Judge Wilson's most passionate dissenting opinions. Now that he presides over the Court as Chief Judge, the question, of course, arises as to whether the Court's position on the "special duty" rule--as well as on other areas of the law in which Wilson has been dissenting, such as the Labor Law protection of workers, the redress of wrongful convictions, the enforcement of the right to counsel, etc.--will start to take a different turn. We certainly shall see.