Caroll J. Miller, J.D., "Annotation: Governmental Tort Liability for Failure to Provide Police Protection to Specifically Threatened Crime Victim," 46 A.L.R.4th 948 (2000).
§ 1. Introduction
[a] Scope
[b] Related matters
§ 2. Summary
§ 3. Held liability exists or is possible
§ 4. Held not liable
[*cases] Jurisdictional Table of Cited Statutes and Cases n*
- - - - - - - - Footnotes - - - - - - -
n* Statutes, rules, regulations, and constitutional provisions bearing on the
subject of the annotation are included in this table only to the
extent that they are reflected in the court opinions discussed in this annotation.
The reader should consult the appropriate statutory or
regulatory compilations to ascertain the current status of relevant statutes,
rules, regulations, and constitutional provisions.
For federal cases involving state law, see state headings.
- - - - - - - - End Footnotes - - - - - - - -
UNITED STATES
U.S.C.A. Const. Amend. 14,. See § 4
Cossio v. City and County of Denver, Colo., 986 F. Supp. 1340 (D. Colo.
1997)-§§ 3, 4
DeMaria v. Washington County, 12 F. Supp. 2d 1093 (D. Idaho 1996)-§ 4
Huffman v. County of Los Angeles, 147 F.3d 1054 (9th Cir. 1998)-§ 3
Merced v. City of New York, 986 F. Supp. 774 (S.D.N.Y. 1997)-§ 3
Smith v City of Elyria (1994, ND Ohio) 857 F Supp 1203-§ 3
Stevens v. Trumbull County Sheriffs' Dept., 63 F. Supp. 2d 851 (N.D. Ohio
1999)-§ 4
ARIZONA
Austin v Scottsdale (1984) 140 Ariz 579, 684 P2d 151, 46 ALR4th 941-§ 3
CALIFORNIA
Falls v Superior Court (1996, 2nd Dist) 42 Cal App 4th 1031, 49 Cal Rptr 2d
908, 96 CDOS 1159, 96 Daily Journal DAR 1960-§ 4
Hartzler v San Jose (1975, 1st Dist) 46 Cal App 3d 6, 120 Cal Rptr 5-§
4
Morgan v County of Yuba (1964, 3d Dist) 230 Cal App 2d 938, 41 Cal Rptr
508-§ 3
Wallace v City of Los Angeles (1993, 2nd Dist) 12 Cal App 4th 1385, 16 Cal
Rptr 2d 113, 93 CDOS 757, 93 Daily Journal DAR 1399-§ 3
DISTRICT OF COLUMBIA
Morgan v District of Columbia (1983, Dist Col App) 468 A2d 1306-§ 4
FLORIDA
Parrotino v Jacksonville (1992, Fla App D1) 612 So 2d 586, 18 FLW D 61-§
3
GEORGIA
Feise v Cherokee County (1993) 209 Ga App 733, 434 SE2d 551-§§ 3,
4
HAWAII
Freitas v Honolulu (1978) 58 Hawaii 587, 574 P2d 529-§ 4
ILLINOIS
Calloway v Kinkelaar (1994, 5th Dist) 261 Ill App 3d 63, 199 Ill Dec 389,
633 NE2d 1380-§ 3
Calloway v Kinkelaar (1995) 168 Ill 2d 312, 213 Ill Dec 675, 659 NE2d
1322-§ 3
Jane Doe v Calumet City (1992, 1st Dist) 240 Ill App 3d 911, 182 Ill Dec
155, 609 NE2d 689-§ 4
Santy v Bresee (1984, 4th Dist) 129 Ill App 3d 658, 84 Ill Dec 853, 473 NE2d
69-§ 4
Sneed v. Howell, 306 Ill. App. 3d 1149, 240 Ill. Dec. 203, 716 N.E.2d 336
(5th Dist. 1999)-§ 3
KANSAS
Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997)-§ 3
MASSACHUSETTS
Lawrence v. City of Cambridge, 422 Mass. 406, 664 N.E.2d 1 (1996)-§ 3
NEW JERSEY
Wuethrich v Delia (1975) 134 NJ Super 400, 341 A2d 365-§ 3
NEW YORK
Greene v New York (1992) 152 Misc 2d 786, 583 NYS2d 766-§ 3
Greene v New York (1992) 152 Misc 2d 790, 588 NYS2d 98-§ 4
Isereau v Stone (1957, 4th Dept) 3 App Div 2d 243, 160 NYS2d 336-§ 4
Jones v County of Herkimer (1966) 51 Misc 2d 130, 272 NYS2d 925-§ 3
Riss v New York (1967, 1st Dept) 27 App Div 2d 217, 278 NYS2d 110-§ 4
Schuster v New York (1958) 5 NY2d 75, 180 NYS2d 265, 154 NE2d 534-§ 3
Sorichetti v New York (1985) 65 NY2d 461, 492 NYS2d 591, 482 NE2d 70-§
3
Zibbon v Cheektowaga (1976, 4th Dept) 51 App Div 2d 448, 382 NYS2d 152-§
3
NORTH CAROLINA
Parker v. Turner, 122 N.C. App. 381, 469 S.E.2d 569 (1996)-§ 4
Stafford v. Barker, 129 N.C. App. 576, 502 S.E.2d 1 (1998)-§ 4
OHIO
Burgess v. Doe, 116 Ohio App. 3d 61, 686 N.E.2d 1141 (12th Dist. Warren
County 1996)-§ 4
SOUTH DAKOTA
Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, 581 N.W.2d 527
(S.D. 1998)-§ 4
TEXAS
Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392 (Tex. App. Dallas
1998)-§ 4
WASHINGTON
Beal for Martinez v. City of Seattle, 134 Wash. 2d 769, 954 P.2d 237
(1998)-§ 3
Donaldson v Seattle (1992) 65 Wash App 661, 831 P2d 1098-§ 4
[*1] Introduction
[*1a] Scope
This annotation collects and discusses those state n1 cases which have considered
the possible tort liability of a governmental entity which
failed to provide sufficient police protection to an identified person who had
been threatened with a particular crime which was subsequently
committed. n2
- - - - - - - - Footnotes - - - - - - -
n1 For federal cases dealing with this subject, see the annotation at 22 ALR
Fed 903 entitled "Liability of United States under Federal Tort
Claims Act for injuries resulting from failure to provide police protection."
n2 Only those cases in which the law enforcement agency was properly notified
of the threat before the crime was committed are included
herein.
- - - - - - - - End Footnotes - - - - - - - -
A number of jurisdictions may have rules, regulations, constitutional provisions,
or legislative enactments bearing upon this subject. Since these
are discussed herein only to the extent that they are reflected in the reported
cases within the scope of this annotation, the reader is advised
to consult the appropriate statutory or regulatory compilations.
[*1b] Related matters Liability of municipal corporation or other governmental
entity for injury or death caused by action or inaction of
off-duty police officer. 36 ALR5th 1. Validity, construction, and application
of stalking statutes. 29 ALR5th 487. Validity, construction, and
effect of "hate crimes" statutes, "ethnic intimidation"
statutes, or the like. 22 ALR5th 261. State's liability for personal injuries
from criminal
attack in state park. 59 ALR4th 1236. Liability for failure of police response
to emergency call. 39 ALR4th 691. Modern status of rule excusing
governmental unit from tort liability on theory that only general, not particular,
duty was owed under circumstances. 38 ALR4th 1194. Municipal
or state liability for injuries resulting from police roadblocks or commandeering
of private vehicles. 19 ALR4th 937. Actual notice or knowledge by
governmental body or officer of injury or incident resulting in injury as constituting
required claim or notice of claim for injury-modern status. 7
ALR4th 1063. Liability of urban redevelopment authority or other state or municipal
agency or entity for injuries occurring in vacant or
abandoned property owned by governmental entity. 7 ALR4th 1129. Governmental
tort liability for injuries caused by negligently released
individual. 6 ALR4th 1155. Immunity of public officer from liability for injuries
caused by negligently released individual. 5 ALR4th 773. Liability of
governmental unit or its officers for injury to innocent occupant of moving
vehicle, or for damage to such vehicle, as result of police chase. 4
ALR4th 865. Liability of university, college, or other school for failure to
protect student from crime. 1 ALR4th 1099. Liability of one treating
mentally afflicted patient for failure to warn or protect third persons threatened
by patient. 83 ALR3d 1201. Liability of municipal corporation for
shooting of bystander by law enforcement officer attempting to enforce law.
76 ALR3d 1176. Landlord's obligation to protect tenant against
criminal activities of third persons. 43 ALR3d 331. Personal liability of policeman,
sheriff, or similar peace officer or his bond, for injury suffered as
a result of failure to enforce law or arrest lawbreaker. 41 ALR3d 700. Comment
Note.-Private person's duty and liability for failure to protect
another against criminal attack by third person. 10 ALR3d 619. Liability of
United States under Federal Tort Claims Act for injuries resulting from
failure to provide police protection. 22 ALR Fed 903.
[*2] Summary
When presented with a plaintiff seeking to establish the liability of a governmental
entity for the failure of its police department to provide
sufficient protection, the courts in many jurisdictions have posited that in
the absence of a contrary statute, such an entity is not liable for
injuries caused by its negligence in the exercise of "governmental"
functions. n3 However, a number of cases have held that such governmental
immunity ceases to exist where a special relationship exists between the injured
party and the governmental entity, n4 and a question has
arisen in a number of cases as to the liability of particular government bodies
for the failure of the police to properly protect a threatened
individual. The results in these cases vary greatly, with the courts being divided
between those which are willing to permit the possibility of
governmental tort liability for the failure of the police to protect a threatened
individual (§ 3, infra), and those which hold that no such liability
exists (§ 4, infra). The facts in these cases are vital to the decision,
for unless the court can find some circumstance to set the plaintiff apart
from the general public as deserving of special, personal attention, most courts
seem to be of the opinion that no governmental liability can
result.
- - - - - - - - Footnotes - - - - - - -
n3 57 Am Jur 2d, Municipal, School, and State Tort Liability § 27.
n4 57 Am Jur 2d, Municipal, School, and State Tort Liability § 251.
- - - - - - - - End Footnotes - - - - - - - -
[*3] Held liability exists or is possible
The courts in the following cases held that where a law enforcement agency
failed to provide police protection to an individual after being
informed that the individual had been threatened with a specific crime, the
governmental entity responsible for the agency was or could be held
liable in tort.
When police are made aware of possible violation of order of protection, they
are obligated to respond and investigate, and their actions will be
subject in negligence action to reasonableness review, which is generally a
matter for jury to decide. Merced v. City of New York, 986 F. Supp.
774 (S.D.N.Y. 1997).
Issues of fact precluded summary judgment for defendant police officials in
action by estate of domestic-violence stabbing victim, where both
police department's written domestic-violence policy and indifferent conduct
of officials who took victim's calls would support jury verdict finding
discrimination against women and/or victims of domestic violence, in context
of incident in which officers told divorced perpetrator that he was
free to remain in victim's home despite her insistence that he leave. Smith
v City of Elyria (1994, ND Ohio) 857 F Supp 1203.
The danger-creation exception to the general rule that a State's failure to
protect an individual against private violence does not violate Due
Process does not create a broad rule making state officials liable under the
Fourteenth Amendment whenever they increase the risk of some
harm to members of the public; rather, the danger-creation plaintiff must demonstrate,
at the very least, that the state acted affirmatively and
with deliberate indifference in creating a foreseeable danger to the plaintiff,
leading to the deprivation of the plaintiff's constitutional rights.
U.S.C.A. Const. Amend. 14. Huffman v. County of Los Angeles, 147 F.3d 1054 (9th
Cir. 1998).
Police officer was entitled to immunity under Colorado Governmental Immunity
Act from state law wrongful death claim brought by murder
victim's mother, based on officer's failure to conduct adequate investigation
and failure to arrest assailant when responding to victim's domestic
abuse call one hour before killing, where there was no evidence that officer
acted willfully and wantonly. West's C.R.S.A. §§ 13-21-201(1),
24-10-118(2). Cossio v. City and County of Denver, Colo., 986 F. Supp. 1340
(D. Colo. 1997), judgment aff'd, 139 F.3d 911 (10th Cir. 1998).
In Austin v Scottsdale (1984) 140 Ariz 579, 684 P2d 151, 46 ALR4th 941, the
court held that where a city police department which had received
information that a certain individual's life was in danger had failed to make
a reasonable effort to warn that individual, a reasonable jury could
find that the city had breached its duty by not doing more to protect such person
before he was killed. An anonymous caller had informed the
police dispatcher that the victim was to be released from a certain hospital
the next day and would be staying at a house on a particular street.
The dispatcher checked the telephone directory, but found no address for the
victim on the named street, and nothing further was done
regarding the call. Approximately 2 days later the victim was found stabbed
to death in his brother's home on the street in question. The court
rejected the view that a public entity could be held liable to an individual
only if the official had narrowed the general duty to the public into a
specific obligation to the individual. Instead, the parameters of duty owed
by the state would ordinarily be coextensive with those owed by
others, continued the court, so that having opted to provide police protection,
the city had a duty to act as would a reasonably careful and
prudent police department in the same circumstances. The court reasoned that
several facts were proffered by the plaintiff which, if
established and believed by a jury, would demonstrate that a reasonably careful
and prudent police department would have done more than the
defendants did. It observed that the city did not attempt to inform the victim
or his family of the threat, nor did it follow its established
procedures in assigning such emergency calls to the most readily available unit.
Where members of the sheriff's department had told the victim that they would
warn her when the man who had been arrested for threatening
her life was about to be released on bail, but failed to do so, and she was
murdered by this man, the court in Morgan v County of Yuba (1964,
3d Dist) 230 Cal App 2d 938, 41 Cal Rptr 508, held that the sheriff's department
was liable for failing to protect the victim by warning her. The
defendant county contended that it was not liable for the discretionary acts
of its officers, but the court pointed out that the negligence urged
was not the discretionary decision to release a dangerous criminal, but rather
the failure to warn, as promised, of that release. No discretion is
exercised in warning those whom one has promised to warn of the impending release
of a dangerous prisoner, stated the court; the simple act
of reaching for a telephone or dispatching a messenger is wholly ministerial.
Although the giving of the promise may have been discretionary,
explained the court, the carrying out of the promise was not discretionary in
any sense. The court then pointed out that under the facts of the
case, a private person acting as the defendant had would be liable, adding that
nonfeasance may give rise to tort liability where a person, in
reasonable reliance thereon, suffers harm, as by refraining from securing other
necessary assistance. The court also rejected the county's
assertion that the officers' promises to warn the victim were not part of their
function as public officers, stating that the giving of reassurance
and protection to members of the public who have been threatened with violence
is within the scope of a policeman's or sheriff's employment.
Where, although detective on city police force knew that murder suspect was
also suspect in two prior murders and that suspect had
threatened witnesses in prior cases, he failed to so advise witness who had
talked to him about most recent murder, even after witness' mother
got phone call threatening to kill witness, and witness was in fact murdered
before testifying, special relationship between detective and
witness had been created, giving rise to special duty of care to warn, for breach
of which city was liable to witness' mother. Wallace v City of
Los Angeles (1993, 2nd Dist) 12 Cal App 4th 1385, 16 Cal Rptr 2d 113, 93 CDOS
757, 93 Daily Journal DAR 1399, review den Wallace v Los
Angeles (1993, Cal) 1993 Cal LEXIS 2944.
In wrongful death suit by representatives of murder victim, allegations did
not provide basis for common law or statutory duty owed by city;
however, allegations that Office of State Attorney promised to obtain restraining
order and assist police in protecting victim from further
violence did state cause of action in that office was negligent in operational
aspect of conduct and thus not entitled to governmental immunity.
Parrotino v Jacksonville (1992, Fla App D1) 612 So 2d 586, 18 FLW D 61, review
gr (Fla) 621 So 2d 432 (certified questions to Supreme Court
regarding duty of Office of State Attorney and immunity issue).
See Feise v Cherokee County (1993) 209 Ga App 733, 434 SE2d 551, cert den (Ga) slip op, § 4.
Plaintiff sufficiently pled cause of action for willful and wanton misconduct
of sheriff and county that had been informed husband had gun and
was making threats to plaintiff, but did nothing to enforce order of protection
or to intervene after being informed of continuing abuse, after
which husband abducted plaintiff, causing plaintiff to suffer extreme emotional
distress and trauma, requiring her to undergo psychological
counseling, and causing her to sustain significant financial losses. Calloway
v Kinkelaar (1995) 168 Ill 2d 312, 213 Ill Dec 675, 659 NE2d 1322.
Plaintiff wife, who had obtained court order of protection to protect her
from abuse from her husband, and who, on more than one occasion,
had advised sheriff's department about further threats made by husband after
service of order, stated cause of action against county for
damages in connection with husband's forcible abduction of plaintiff; public
duty doctrine did not apply in view of special relationship police had
entered into with plaintiff. Calloway v Kinkelaar (1994, 5th Dist) 261 Ill App
3d 63, 199 Ill Dec 389, 633 NE2d 1380, app gr 157 Ill 2d 496, 205 Ill
Dec 157, 642 NE2d 1274.
Complaint sufficiently alleged facts that could result in a determination
of willful and wanton conduct on the part of city's police, as required for
liability under the Domestic Violence Act, in connection with a spousal homicide
committed by a husband against whom an order of protection
had issued; complaint stated repeated instances where decedent reported husband
abusing her, and after she obtained the order of protection,
she again reported repeated stalking on the part of husband, and even had an
eyewitness corroborate her claims of his harassing her. S.H.A.
750 ILCS 60/102, 301(a), 305. Sneed v. Howell, 306 Ill. App. 3d 1149, 240 Ill.
Dec. 203, 716 N.E.2d 336 (5th Dist. 1999).
Police officers who had responded to domestic disturbance which left at least
one party battered and bleeding, and who had taken into custody
one of participants and, after handcuffing him, seated him on sidewalk in unlit
area, owed duty to participant to protect him from his girlfriend,
with whom he had been fighting and who cut his throat with knife while he was
seated and handcuffed; police were aware that individuals
involved had consumed alcohol, had placed participant in position where he could
not defend himself, and should reasonably have foreseen
danger that girlfriend posed. Jackson v. City of Kansas City, 263 Kan. 143,
947 P.2d 31 (1997).
Police department's liability for its failure to protect liquor store owner
was supportable, under statute requiring "explicit" and "specific"
vow of
protection in order for action to lie, since police department had explicitly
told owner that police officer would be stationed outside liquor store
at closing time, and officer was so stationed for three days but then withdrawn
without notice to owner, and on next day person from whom
owner sought protection shot owner. Lawrence v. City of Cambridge, 422 Mass.
406, 664 N.E.2d 1 (1996).
The court in Wuethrich v Delia (1975) 134 NJ Super 400, 341 A2d 365, affd
155 NJ Super 324, 382 A2d 929, certif den 77 NJ 486, 391 A2d 500,
held that once a township police department received a clear warning of a threat
to take life, it had a ministerial and operational duty to
investigate, and a jury could find liability based on its failure to do so.
During the afternoon and evening on a particular date, the police
department was notified several times that a man was menacing certain identified
individuals with a firearm at a particular location a short
distance from police headquarters. No response was made by the police department
to any of these warnings, and early the next morning the
man shot and killed the plaintiff's decedent. The court distinguished between
discretionary and ministerial government activity, explaining that
discretionary acts involve policy decisions for which the government and its
employees will not be held liable unless the actions are palpably
unreasonable, while ministerial acts involve much less discretion. Noting that
police officers have a duty to investigate seemingly criminal
behavior or activity and a right to detain those involved in such activities,
the court stated that once the police received the warnings as
alleged by the plaintiff, they had a clear ministerial, not discretionary, obligation
to investigate. Although several statutes cited by the township
appeared to limit its liability, the court stated that a fair reading of these
statutes would indicate absolute immunity for higher level
discretionary acts, but not for those of individual police officers whose actions
might be partly discretionary and partly ministerial. The court
pointed out that it was not concerned with the failure of the police to arrest
or physically seize the defendant and hold him to answer to a
criminal charge, but rather with their failure to investigate complaints of
an armed man threatening people. Noting that firearms involve an
extraordinarily great hazard and that the police were warned of the danger,
the court concluded that the decision not to investigate could be
found by a jury to be palpably unreasonable and that the burden was on the police
to explain why they had failed to carry out their duty to
investigate.
A city has a special duty to use reasonable care for the protection of persons
who have collaborated with it in the arrest or prosecution of
criminals when it reasonably appears that they are in danger due to their collaboration,
held the court in Schuster v New York (1958) 5 NY2d
75, 180 NYS2d 265, 154 NE2d 534. A man who had supplied information to police
which led to the arrest of a dangerous criminal later received
letters threatening his life after his role in the arrest became publicly known.
He notified the police of these threats, but they assured him that
he was in no danger and refused to provide any protection, and the man was subsequently
murdered. Although municipalities have no obligation
to exercise police powers to protect every member of the general public, noted
the court, where persons have actually aided police in the
apprehension or prosecution of criminals, a reciprocal duty arises on the part
of society to use reasonable care for the police protection of such
persons, at least where it is reasonably demanded or sought. The court pointed
out that the government had not been merely passive, but had
sent out flyers requesting information regarding the whereabouts of the criminal,
thereby making active use of private citizens. By actively
calling upon the citizen for help and utilizing his help when it was rendered,
the court stated that the government had gone forward to such a
stage that inaction in furnishing police protection to such an individual would
commonly result not merely in withholding a benefit, but in working
an injury. Under such circumstances there existed a relationship out of which
arose a duty to go forward, added the court.
The court in Sorichetti v New York (1985) 65 NY2d 461, 492 NYS2d 591, 482
NE2d 70, affirmed the decision of the lower court holding the
defendant city liable for the failure of its police department to protect the
plaintiff from her father, holding that a special relationship existed
between the city and the plaintiff. The infant plaintiff and her mother were
frequently abused and threatened by the father, and the mother had
informed the police of these threats and had sought protection on numerous occasions.
In addition, a court order of protection was issued,
designed to facilitate the efforts of the plaintiff and her mother to obtain
police protection from her father. On the date in question the father
had temporary custody of the plaintiff for visitation purposes, and when he
failed to return the child at the appointed time, the mother again
sought police assistance, telling them of threats against the child's life made
by the father when he took her away, and reminding them of the
protective order. However, the police refused to take any action, and a short
time later the plaintiff was seriously injured by her father. The
court pointed out that a municipality could not be held liable for injuries
resulting from a failure to provide adequate police protection absent a
special relationship between the municipality and the injured party, but stated
that in the present case such a relationship existed, having
arisen out of the order of protection, the police department's knowledge of
the father's violent history, its response to the mother's pleas for
help, and the reasonable expectation of police protection. Where a protective
order exists, the police are obligated to respond to every request
for protection, explained the court, and in light of their knowledge of the
father's violent tendencies, their failure to investigate was not
reasonable. The court also found it significant that when the mother requested
police assistance, she was repeatedly given the impression that
action would be taken soon.
See also Zibbon v Cheektowaga (1976, 4th Dept) 51 App Div 2d 448, 382 NYS2d
152, app dismd 39 NY2d 1056, 387 NYS2d 428, 355 NE2d 388,
in which the court held that a complaint stated a valid claim for relief where
it was alleged that following threats against the victims' lives by a
known dangerous criminal, the local police affirmatively undertook a duty to
protect the victims, the victims relied upon such assurances of
protection, and the police thereafter virtually withdrew such protection without
notice to the intended victims. Such actions by the police
deprived the victims of the opportunity to take necessary steps to protect themselves
and subsequently increased the danger to them, stated
the court. The court continued that to hold as a matter of law that in the absence
of a special relationship between the police department of a
municipality and a member of the general public the police department may never
be cast in damages, even when it assumed a duty by
affirmative action and negligently performed such duty, would be contrary to
sound legal analysis, relevant policy considerations, and judicial
precedent.
The court in Jones v County of Herkimer (1966) 51 Misc 2d 130, 272 NYS2d 925,
held that where the victim who had sought police protection
was a person to whom a special duty of care was owed, the police department
and the municipality could be held liable for failure to supply the
requested protection. For more than 3 years the victim had been harassed and
threatened by a man who eventually killed her, although she had
made frequent complaints and requests for assistance to the police departments
of the defendant municipalities. At one point the man was
convicted of assaulting the victim and her father and was placed on probation,
but he continued to harass and threaten her, and although both
police departments were informed of this violation of probation, neither took
any action. Although a municipality is not liable for its failure to
provide general or adequate police protection, stated the court, municipal tort
liability has been held to exist where there has been some
existing special relationship between the defendant municipality and the plaintiff
individual which composes a common-law duty on the
defendant to use due care toward the plaintiff. If conduct has gone forward
to such a state that inaction would commonly result, not
negligently in merely withholding a benefit, but positively or actively in working
an injury, continued the court, there exists a relationship out of
which arises a duty to go forward. Immunity is no longer bestowed on the municipality
simply because it was engaged in the performance of a
governmental function or because the negligence alleged consisted of nonfeasance
rather than misfeasance, the court added. The evidence
showed a situation involving constant threats, violence, and harassment which
were adequately and frequently brought to the attention of the
authorities of both municipalities with no effective action taken by either
of them, stated the court, and the plaintiff was therefore a person to
whom a special duty of care was owed. Whether the assault which resulted in
the girl's death was reasonably foreseeable following the
violations of probation presented a question of fact for the jury, concluded
the court, and under the circumstances the municipalities' motions
to dismiss and for summary judgment were denied.
Defendant city was not entitled to dismissal of claim by estate of grand jury
witness who was killed by indicted criminal defendant after
decedent testified before grand jury on attempted murder charges, where death
threat was communicated to coworker of witness and
conveyed to police, but witness was shot and killed at work on next night after
threat was conveyed to police, since jury could find special
duty in circumstances. Greene v New York (1992) 152 Misc 2d 786, 583 NYS2d 766.
City made express assurances of protection, for purposes of wrongful death
action arising from delayed response to 911 caller who was
subsequently murdered by estranged husband, where 911 operator said that police
would be sent to scene, even though operator did not
specify time period within which police would arrive. Beal for Martinez v. City
of Seattle, 134 Wash. 2d 769, 954 P.2d 237 (1998).
[*4] Held not liable
In the following cases the courts held that the governmental entity in question
could not be held liable when its police department failed to
properly protect a named individual who had been threatened with a specific
crime.
County had no affirmative duty to protect domestic abuse victim from her ex-boyfriend
due to fact that emergency operator told victim that
someone would come over to her house, and thus did not violate victim's substantive
due process rights by not immediately dispatching officers
to house, where victim did not indicate imminent danger. U.S.C.A. Const. Amend.
14,. Stevens v. Trumbull County Sheriffs' Dept., 63 F. Supp.
2d 851 (N.D. Ohio 1999).
Allegations that county sheriff and deputy had failed to protect plaintiffs
from harassment by their neighbors or arrest neighbors after
altercation with plaintiffs, and that failure to arrest neighbors emboldened
them to continue harassing plaintiffs, were insufficient to allege that
sheriff and deputy had affirmatively placed plaintiffs in position of danger
and failed to protect them, as would support § 1983 action based on
violation of their due process rights; deputy and sheriff did not affirmatively
create any dangerous situation, as neighbors had created danger,
and plaintiffs were never dependent and helpless. U.S.C.A. Const. Amend. 14;
42 U.S.C.A. § 1983. DeMaria v. Washington County, 12 F. Supp.
2d 1093 (D. Idaho 1996), aff'd, 129 F.3d 125 (9th Cir. 1997), cert. denied,
119 S. Ct. 54 (U.S. 1998).
Police officer's failure to arrest assailant when responding to victim's domestic
abuse call did not give rise to "special relationship" between
officer and victim, who was later killed by assailant, and/or her children,
such that city did not assume affirmative duty to protect victim or
children from assailant. U.S.C.A. Const. Amend. 14; 42 U.S.C.A. § 1983.
Cossio v. City and County of Denver, Colo., 986 F. Supp. 1340 (D. Colo.
1997), judgment aff'd, 139 F.3d 911 (10th Cir. 1998).
Where no special relationship existed between a murder victim and the police
whereby the victim relied on an express or implied promise by the
police to provide protection, the court in Hartzler v San Jose (1975, 1st Dist)
46 Cal App 3d 6, 120 Cal Rptr 5 (disagreed with Whitcombe v
County of Yolo (3d Dist) 73 Cal App 3d 698, 141 Cal Rptr 189), held that the
police department enjoyed absolute, not discretionary, immunity,
and could not be held liable for failing to protect the victim. The victim had
called the police and reported that her estranged husband had
called and told her that he was coming to her residence to kill her. Although
she requested immediate aid, the police refused to come to her
assistance, and less than an hour later her husband came to her home and stabbed
her to death. The court also rejected the appellant's
contention that the police department should be liable for its omission because
a special relationship existed between the victim and the police
because the police had responded on 20 previous occasions to similar calls from
the victim and were aware of previous threats of violence made
by the husband whom they had once arrested for assaulting the victim. The court
stated that the earlier response of the police to similar calls
from the victim did not indicate that the department had assumed a duty toward
the victim which was greater than the duty owed to any other
member of the public. In fact, added the court, the police could have previously
responded to her calls only to discover that she was not in
danger.
In civil action by parents of witness to gang murder against two deputy district
attorneys for failing to warn or protect witness, who was
murdered after testifying at preliminary hearing relating to gang murder, trial
court erred in failing to grant defendants' motions for summary
judgment as to all causes of action, based on their claim of immunity; even
assuming defendants had special relation with witness, had duty to
warn and care for him, and breached that duty, they were entitled to summary
judgment since they enjoyed quasijudicial immunity, having
acted at all times within their official capacity as prosecutors. Falls v Superior
Court (1996, 2nd Dist) 42 Cal App 4th 1031, 49 Cal Rptr 2d 908,
96 CDOS 1159, 96 Daily Journal DAR 1960.
Where the plaintiff failed to show that the police were negligent in responding
to her requests for assistance after her husband threatened her
and their children, the court in Morgan v District of Columbia (1983, Dist Col
App) 468 A2d 1306, held that the District of Columbia could not be
held liable when the husband wounded the plaintiff and their son and killed
the plaintiff's father while the police were in the process of arresting
him. On several occasions, the plaintiff had called the police station to report
that her husband, a police officer, had beat her and threatened
her with his gun. On the day in question the husband again beat his wife and
threatened to kill her and then left with their two small children.
The plaintiff again called police who directed her husband to report to the
station after returning the children to their mother. Another officer
was sent to the plaintiff's home to pick up the husband, but the shootings occurred
before he could be arrested. The court noted that law
enforcement officials generally may not be held liable for failure to protect
individual citizens from harm caused by criminal conduct, but that this
rule would not apply where a special relationship existed between the police
and a particular individual. The court reasoned that no such special
relationship existed in this case, and in addition pointed out that the police
had responded promptly to the plaintiff's calls. The decision
concerning the action to be taken following each call was properly within the
discretion of the officer in charge, stated the court, and the
courts and lay persons should not be allowed to second guess the exercise of
this professional judgment. The police had responded reasonably
to the plaintiff's calls, although they had no special duty to protect her,
and the court concluded that the failure to protect the threatened
victims was unfortunate, but that the facts did not support a finding of negligence.
Where woman was assaulted by neighbor who had, on previous day, threatened
to "carve up" woman, and such threat had been reported to
police, county was not liable to woman and her husband for injuries suffered;
county could be liable if special duty to woman existed, but no
such duty did exist since there had been no explicit assurance, through promises
or actions, that county would act on woman's behalf, and
since there was no justifiable reliance by woman on county's affirmative undertaking.
Feise v Cherokee County (1993) 209 Ga App 733, 434
SE2d 551, cert den (Ga) slip op.
In Freitas v Honolulu (1978) 58 Hawaii 587, 574 P2d 529, the court held that
the failure of police to provide protection is ordinarily not
actionable unless police action has increased the risk of harm and there is
negligence in providing protection against the enhanced danger, and
ruled that the city could not be held liable under the particular circumstances.
A man pointed a loaded rifle at several individuals, threatened to
kill them, and fired into the air before leaving the scene. The incident was
reported to the police who made no arrest and took little action.
Several weeks later the man shot the plaintiffs whom he had previously threatened.
The court reasoned that there was no other circumstance
shown, beyond their duty to preserve the peace and enforce the laws, which created
a duty owed by the police officers or the city to take any
affirmative action to protect the plaintiffs. In addition, the court stated
that it was necessary for the plaintiffs to show that an affirmative
action which was so owed was not taken and that if it had been, the plaintiffs'
injuries would have been prevented. The court reasoned that
the instant case did not present an appropriate occasion for it to consider
under what circumstances, if any, the failure of a municipality or its
officers to provide police protection would be actionable.
Although the defendant law enforcement officials knew that a certain man had
threatened the victims and that the victims had requested
protection against that person, and as a result the defendants had promised
to warn the victims of that person's release from custody, the
court in Santy v Bresee (1984, 4th Dist) 129 Ill App 3d 658, 84 Ill Dec 853,
473 NE2d 69, held that the defendants had no duty to protect the
individual victims from crime and that such a duty existed only to the citizenry
in general. A neighbor who had repeatedly threatened and
harassed the victims had apparently shot and killed them after he was released
from police custody following his arrest on charges arising from
the victims' complaints. The court reasoned that the view that law enforcement
agencies and officers are not liable to third parties for the
failure to prevent crime reflects the judgment that to hold otherwise would
impose an impossible burden on law enforcement agencies and
officers by requiring them to carry out a myriad of difficult and frequently
conflicting duties in guaranteeing the safety of every individual
citizen. An exception to the rule of nonliability arises when an agency's or
an officer's undertaking transforms the general citizen into an object
of special concern, continued the court. However, the court disagreed with the
plaintiffs' allegations that a special relationship existed in the
present case due to the defendants' knowledge of the threats, the victims' requests
for protection, or the defendants' promises to warn of the
assailant's release from custody. The court pointed out that law enforcement
agencies and officers acquire, record, and relay vast numbers of
statements and reports in the course of their work, and that basing the duty
of a special relationship merely on their knowledge of a threat
would add an intolerable burden to the ways in which such information is handled.
City was not liable to mother and her two children for rape committed against
one child and assault committed against other child, despite
allegations that mother had been locked out of her apartment by intruder, that
police were summoned, and that police refused to enter
apartment and prevented mother and her neighbors from their attempts to break
down door or otherwise enter apartment. Although plaintiffs
alleged that defendants assumed "special relationship" to children
when they became aware through mother that children were locked in
apartment with intruder who was potential rapist, and that defendants "wilfully
and wantonly" failed to enter apartment, thereby allowing
intruder to rape daughter, complaint made no allegations that would lead to
conclusion that children were injured while they were under direct
and immediate control of police officers. Plaintiffs' allegation that mother
and neighbors "believed" they were prevented from helping children
because of orders and action of police went only to state of mind of mother
and neighbors and did not meet control requirement. Jane Doe v
Calumet City (1992, 1st Dist) 240 Ill App 3d 911, 182 Ill Dec 155, 609 NE2d
689, app gr 151 Ill 2d 562, 186 Ill Dec 379, 616 NE2d 332.
Affirming the dismissal of the complaint, the court in Isereau v Stone (1957,
4th Dept) 3 App Div 2d 243, 160 NYS2d 336, held that the county
could not be held liable for the failure of deputies to protect a woman whose
life had been threatened by her husband. The woman had
requested protection from two deputies, stating that her husband had assaulted
her and then left their home, threatening to return and kill her.
The deputies commanded the woman to aid in arresting her husband and then left,
and the husband returned and murdered his wife. The court
reasoned that the deputies were acting in the service of the public and as such
were independent officers and not in the employ of the county.
The relationship of principal and agent did not exist, continued the court,
and for this reason the municipality was not civilly liable for the
deputies' acts. In addition, the court stated that there was no conduit of liability
through the sheriff since a constitutional provision specifically
stated that the county would not be responsible for the acts of the sheriff.
In Riss v New York (1967, 1st Dept) 27 App Div 2d 217, 278 NYS2d 110, affd
22 NY2d 579, 293 NYS2d 897, 240 NE2d 860, the court held that
where, in light of the facts, the decision of the police not to provide special
protection to one who had been threatened was not unreasonable,
the complaint charging the city with negligence through its police department
was properly dismissed. For a number of months the plaintiff had
been threatened and harassed by a suitor whom she had rejected. The plaintiff
had informed the police of these threats and had repeatedly
requested protection, but none was given, and the would-be suitor eventually
attacked the plaintiff and caused her to suffer severe injuries.
The court explained 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. Examining the circumstances
under which the threats were made against the plaintiff, the
court stated that it was not uncommon for "unfavored swains" to "relieve
their frustrations by predictions of dire results to the object of their
attentions," and that it would be not only impracticable, but impossible,
to protect against such threats. In addition, the court noted that there
was no real evidence that any of these threats had been carried out previously
and that the person accused was a lawyer in good standing.
The facts did not show the presence of such imminent danger that extraordinary
police activity was indicated, concluded the court, and some
additional proof of an immediate danger would have to be shown to prove that
the failure to afford personal protection in excess of that
accorded to members of the community generally was negligent.
No special duty arose from decedent's status as grand jury witness, notwithstanding
acknowledged threats against life of witness, sufficient to
support wrongful death claim against city for failure to provide police protection
to witness. Greene v New York (1992) 152 Misc 2d 790, 588
NYS2d 98.
City was not liable to store owner for injury suffered in assault, even though
assailant threatened owner earlier in day of assault and owner
reported threat to police, since police did not promise protection to owner,
and there was no special relationship between owner and police.
Parker v. Turner, 122 N.C. App. 381, 469 S.E.2d 569 (1996), cert. denied, 344
N.C. 439, 476 S.E.2d 122 (1996).
Ordinarily, municipality or its agents may not be held liable to specific
individuals for failure to furnish them with police protection. Stafford v.
Barker, 129 N.C. App. 576, 502 S.E.2d 1 (1998), review denied, 348 N.C. 695
(1998).
Alleged conversation between wife and police employee about husband's intention
to kill wife did not give rise to special duty of city to protect
wife's safety; accordingly, public duty doctrine applied, and city was immune
from liability to wife for injuries she suffered when husband
pursued her into entryway of police department and shot her. R.C. §§
737.11, 2744.02(B)(4). Burgess v. Doe, 116 Ohio App. 3d 61, 686 N.E.2d
1141 (12th Dist. Warren County 1996), dismissed, appeal not allowed, 78 Ohio
St. 3d 1452, 677 N.E.2d 813 (1997).
Police officers, who responded to report of family dispute, did not have actual
knowledge that assailant would rape and stab his former
girlfriend, for purposes of special duty exception to public duty rule, even
though witness and girlfriend told police how assailant had pulled her
from her car, where girlfriend told officers she was not assaulted and did not
want a protection order. Walther v. KPKA Meadowlands Ltd.
Partnership, 1998 SD 78, 581 N.W.2d 527 (S.D. 1998).
Assertion that police department failed to take reasonable and prudent action
in response to frequently and clearly reported threats to safety of
occupants of home was merely general conclusion, lacked any assertion of fact,
and therefore raised no genuine material fact issue that might
prevent summary judgment in favor of city on its governmental immunity defense
to claims by victims of gang violence in home. Orozco v. Dallas
Morning News, Inc., 975 S.W.2d 392 (Tex. App. Dallas 1998).
City was not liable for death of woman who was killed by her boyfriend where
(1) woman called police after she was attacked by boyfriend, (2)
police responded to complaint, but were unable to locate him, (3) police offered
to take woman to shelter, but she declined offer, and (4)
boyfriend returned next day and killed woman. Under Domestic Violence Official
Response Act, city would have had mandatory duty to arrest
boyfriend if he had been found at scene. However, that duty was limited to cases
where offender was on scene and act did not create
on-going mandatory duty to conduct investigation. Officers conducted search
of immediate area of woman's residence and reported to her that
they were unable to locate boyfriend. Although officers obtained possible address
for boyfriend, woman told them that he would not be present
at that address. Officers further properly exercised their responsibility by
offering to take woman to place of safety, and special relationship
created by statute terminated when woman declined offer. Donaldson v Seattle
(1992) 65 Wash App 661, 831 P2d 1098, review pending (Wash)
1992 Wash LEXIS 234 and review dismd 120 Wash 2d 1031, 847 P2d 481.