Wednesday, June 14, 2023

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

NY Senate Photo
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.