State Court of Appeals declines to expand police liability in domestic violence cases

The New York Court of Appeals issued two rulings on the same day focusing on the "special relationship" rule that makes it difficult to sue governmental agencies when someone is injured or killed because of the government's failure to protect a victim. At this link, I discuss a case from Erie County dealing with a developmentally-disabled woman who was killed by family members after Child Protective Services and Adult Protective Services had dismissed prior reports of abuse toward the victim. This case involves the police in New York City. Same result.

The case is Howell v City of New York, issued on November 22. A special relationship exists under New York case law, in part, when the crime victim justifiably relies on police promises that they will protect her from third-party violence. The law books are filled with cases where plaintiffs could not prove any special relationship. This case examines the special duty principle under a particularly difficult and sympathetic set of facts: someone violated a court-ordered order of protection and caused serious physical injuries. If these facts do not expand the special relationship test, then nothing will. 

In this case, the victim's ex-boyfriend pushed her out of a third-story window in violation of an order of protection. Plaintiff argued that the order of protection created a special relationship between her and the police. But the Court of Appeals, in a divided vote, says plaintiff cannot prove any special relationship because she testified she had no contact with the police on the day prior to the attack, and the officers never told her that the ex-boyfriend would be arrested if he violated the order of protection. Her testimony demonstrates that she did not relax her vigilance based on any police promises that they would protect her, and the police were not on the scene or in a position to provide any assistance if necessary. Nor did the police promise to provide any such assistance at some reasonable time. 

In short, the mere existence of an order of protection does not create a special relationship, and any contrary rule would expand governmental liability in violation of the policies underscoring the special duty rule. The Court notes that nearly 200,000 such orders were issued in domestic violence cases in 2021. If we want to law to change in this area, that will have to be accomplished by the State Legislature, not the courts. 

In dissent, Judge Wilson states:

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, defendants Mosely-Lawrence and Meran, 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.

. . . 

Ms. Howell should be able to pursue her claim for damages against the City, by establishing that the City bore her a "special duty" through any of three avenues: (1) the Domestic Violence Intervention Act (DVIA) establishes a statutory special duty, and its violation by the officers provides a basis for relief; (2) a triable issue of fact exists as to whether the officers assumed positive control of a dangerous situation; and (3) a triable issue of fact exists as to whether the officers' statements and conduct established representations on which Ms. Howell justifiably relied. 

Judge Rivera also issues a passionate dissent, stating, "This appeal is a cautionary tale of the continued failures of our legal system to effectively address intimate partner violence and protect survivors, made worse by the majority decision. If, as the majority concludes, plaintiff cannot pursue her claims and test her allegations in court because the officers made it clear that they would not comply with the law, then how can—and why should—survivors trust our legal system?"