|NY Senate Photo
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.
[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.
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?
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.
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.
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.