Police Officer Liability for Negligence Further Refined by Court of Appeals and Third Department
April, 2002
Recently, both the Court of Appeals and the Third Department have evaluated the negligence liability of police officers and police departments. In Criscione v. City of New York, 736 N.Y.S.2d 656, the Court of Appeals held that a police officer responding to a “911” call was involved in an “emergency operation” and therefore could not be held liable for ordinary negligence. And in Clark v. Town of Ticonderoga, 737 N.Y.S.2d 412, the Third Department granted summary judgment to a police department because the evidence was insufficient to prove that a stabbing victim justifiably relied on the police department for her protection.
Criscione v. City of New York
In Criscione, plaintiff was a police officer who was the passenger in a patrol car responding to a “911” call. Plaintiff was injured when the patrol car collided with another vehicle en route to investigate the scene; he sued not only the City of New York but also the officer who was driving the patrol car at the time of the crash. The jury found in favor of the plaintiff, determining that the defendant officer was not involved in “emergency operation” of the vehicle and that the officer proximately caused the accident by negligently operating the patrol car and exceeding the speed limit.
On appeal, the defendant officer contended that the trial court improperly found that he was not involved in “emergency operation” of the patrol car as defined in Vehicle and Traffic Law §114-b, which describes the vehicular operations that constitute “emergency operation:” “The operation or parking” of an authorized emergency vehicle, when such vehicle is engaged in . . . responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service.” The statute further provides in §1104 that a driver of an “authorized emergency vehicle” engaged in “emergency operation” is exempt from certain “rules of the road.” Relying on these statutory provisions, the defendant officer argued that the proper standard to apply to determine his liability was “reckless disregard for the safety of others” instead of the less stringent standard of ordinary negligence.
Plaintiff asserted that § 114-b should not be applied literally in all circumstances when characterizing the nature of a dispatch call. He argued that the issue of whether the defendant officer was involved in an “emergency operation” was properly submitted to the jury at the trial court level and correctly decided since neither plaintiff nor defendant felt that the “911” call — categorized as a “10-52” non-crime call by the department — rose to the level of an “emergency situation.”
The Court of Appeals strictly applied the language of §114-b, and found that the patrol car in question was an “authorized emergency vehicle” under the statute. Because it was “responding to” a “police call,” the car was engaged in “emergency operation.” The defendant officer’s conduct was thus to be evaluated under the standard of reckless disregard for the safety of others, and a new trial was warranted.
In reaching this conclusion, the court noted that §114-b does not define “police call,” but found that “911 call” falls within the purview of that statutory phrase. “Although §114-b does not define the phrase ‘police call,’ we see no reason why a radio call to officers on patrol by a police dispatcher regarding a 911 complaint should not fall squarely within the plain meaning of that term, nor do we discern any legislative intent to vary the definition of ‘emergency operation’ based on individual police department classifications.” The court also found that the individual officers’ evaluations of whether the call was an “emergency” were “irrelevant.” “Given the legislative determination that a police dispatch call is an ‘emergency operation,’ it is irrelevant whether the officers believed that [this] call was an emergency or how the Police Department categorized this type of call.”
Clark v. Town of Ticonderoga
In Clark, plaintiff sued the Town of Ticonderoga for the injuries she sustained when her estranged husband knocked down the front door of her apartment and stabbed her with a knife in the presence of her children. Plaintiff alleged that the Town of Ticonderoga and the Ticonderoga Police Department failed to provide her with adequate police protection. Plaintiff provided evidence showing that from July 20, 1999 until the time of the attack on August 7, 1999, there were numerous events involving plaintiff, her estranged husband and the Town of Ticonderoga police officers. Prior to the incident, plaintiff informed the police of her husband’s threats to kill her and his physical abuse.
Plaintiff asserted the existence of a “special relationship” between her and the Ticonderoga Police Department. This imposed the burden on her of proving:
1) an assumption by the municipality of an affirmative duty to act on her behalf;
2) knowledge on the part of the municipality’s agents that inaction could lead to harm;
3) direct contact between the municipality’s agents and plaintiff; and
4) plaintiff’s justifiable reliance on the municipality’s affirmative undertaking.
The Third Department determined that plaintiff satisfied the first three elements but that she failed to prove her justifiable reliance on the municipality’s affirmative undertaking to protect her. “The ‘reliance’ that is required is not an abstract one that can be satisfied by evidence of plaintiff’s hope or even belief that defendants could provide her with adequate police protection. To the contrary, it is plaintiff’s burden to show that defendants’ conduct actually lulled her into a false sense of security, induced her to either relax her own vigilance or forego other avenues of protection, and thereby placed her in a worse position than she would have been had they never assumed the duty.”
The Third Department then granted summary judgment for defendants, finding that plaintiff failed to show the requisite reliance because she was aware that:
1) her husband was at large in the community;
2) the police were powerless to take any action against plaintiff’s husband unless he violated the order of protection or committed some independent crime; and
3) plaintiff could expect no police protection beyond the officers’ “intermittent conduct of keeping an eye on her.”
Learning Point:
Both Clark and Criscione illustrate that plaintiffs have a difficult burden of proof against police departments and police officers engaged in the line of duty. These cases make it clear that courts are going to strictly construe statutes and case law before imposing liability on a police department or a police officer.
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