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ALTHOUGH THE POLICE HAD VISITED PLAINTIFF SEVERAL TIMES IN RESPONSE TO HER CALLS ABOUT HER EX-BOYFRIEND’S VIOLATIONS OF THE ORDER OF PROTECTION AND THE POLICE HAD SPOKEN TO HER EX-BOYFRIEND (WHO LIVED DIRECTLY ABOVE HER), THE MAJORITY CONCLUDED THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE POLICE SUCH THAT PLAINTIFF COULD HAVE JUSTIFIABLY RELIED ON THE POLICE FOR PROTECTION; HER EX-BOYFRIEND SUBSEQUENTLY THREW HER OUT OF A SECOND-FLOOR WINDOW (CT APP).

The Court of Appeals, over two extensive dissenting opinions, determined the fact plaintiff’s ex-boyfriend was subject to an order of protection at the time he attacked her and threw her out of a second-floor window did not create a special relationship with the police such that the municipality would be liable for failing to protect her. The majority concluded plaintiff could not have justifiably relied on any police promises that her ex-boyfriend would be arrested for violating the order of protection. “Justifiable reliance” is an essential element of a special relationship:

… [Plaintiff] failed to raise a triable issue concerning the “critical” fourth element of an assumed special duty … . Plaintiff testified during her deposition that she had no contact with the police on the day of the incident prior to the attack, that her ex-boyfriend was in fact at liberty that day, and that the officers never told her that her ex-boyfriend would be arrested for violating the order of protection. Plaintiff’s own testimony demonstrates that she did not relax her vigilance based on any police promises that her ex-boyfriend would be arrested for violating the order of protection. It also shows that the 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.

From Judge Wilson’s dissent:

Mr. Gaskin [the ex-boyfriend] had violently assaulted Ms. Howell [plaintiff] 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? * * *

In the week before Mr. Gaskin threw Ms. Howell out of the window, Ms. Howell called the police several times to report that Mr. Gaskin was violating the order of protection. … The officers told Ms. Howell that they would “ensure . . . that [Mr. Gaskin] would be removed from the premises.” The officers spoke to Mr. Gaskin, who told the officers that he would leave his apartment [which was above Ms. Howell’s] and stay at his uncle’s house. … The officers made Ms. Howell “feel assured he won’t be coming back.” Howell v City of New York, 2022 NY Slip Op 06633, CtApp 11-22-22

Practice Point: Although plaintiff had repeatedly made the police aware of her ex-boyfriend’s violations of the order of protection and the police had promised to arrest him, the majority concluded there was no special relationship between the police and plaintiff such that plaintiff could have justifiably relied on police protection. Ultimately, the ex-boyfriend, who lived directly above plaintiff, threw plaintiff out of a second-floor window. There were two strong dissenting opinions.

 

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