DeLong v. Erie County

HANCOCK, JR.
[. . .]
Before her death, Amalia DeLong, her husband, and their three young children resided at 319 Victoria Boulevard in the Village of Kenmore, a suburb of Buffalo located in Erie County. In October, 1976, the Village of Kenmore was one of the four communities outside of Buffalo fully served by the 911 emergency telephone system operated by the Central Police Services, an agency of Erie County, with the active assistance and co-operation of the Buffalo Police Department. The system was located in the 911 room in Buffalo police headquarters in downtown Buffalo. At 9:29:29 in the morning of October 25, 1976 Amalia DeLong dialed 911 on her telephone and was immediately connected to the 911 room. The transcript of her call is as follows:
9:29:29 - Caller: "Police?"
Complaint Writer: "911."
Caller: "Police, please come, 319 Victoria right away."
Complaint Writer: "What's wrong?"
Caller: "There's a burglar."

9:29:34 - Complaint Writer: "In there now?"
Caller: "I heard a burglar; I saw his face in the back; he was trying to break in the house; please come right away."
Complaint Writer: "Okay, right away."

9:29:43 - Caller: "Okay."


The call had lasted 14 seconds. The complaint writer had recorded the address on the complaint card as "219 Victoria".

[. . .]

Amalia DeLong had received seven knife wounds: to the left side of the neck, the left side of the head, the second finger of the right hand, the nail of the third finger on the left hand, the thumb of the left hand, and a wound to the left shoulder. The laceration on the neck was fatal. It was deep and had severed the jugular vein and carotid artery on the left. The cuts on the fingers were described as being of a "defensive type".

The police in searching the house found evidence of a savage attack. A housecoat, feminine undergarments, and a brassiere with a broken clasp were found on the living room floor, and pillows, papers and other items were strewn about. There were spatterings of blood on the walls and floor in the kitchen, in the hallway and on the rug in the living room and several large stains on the front door, on the rug inside the door and on the porch.

[. . .]

The purpose of the 911 emergency or "hot line" system is to assist in the delivery of police services to the people in the communities served (determined by whether the telephone exchanges in the communities are such that dialing 911 will give an automatic connection with the 911 room at Buffalo police headquarters).

[. . .]

On the morning of October 25, the complaint writer, in addition to mistakenly recording the address on the complaint card as 219 instead of 319 Victoria, failed to follow the instructions in four respects: (1) he did not ask the name of the caller; (2) he did not determine the exact location of the call; (3) he did not address the caller by name; (4) he did not repeat the address.

The operating procedures in effect on October 25, 1976 also called for follow-up action if, as with the DeLong call, the report came back to the dispatcher: "No such address." In such event, the dispatcher was required to notify the complaint writer or the 911 lieutenant (the Buffalo police lieutenant on duty in the 911 room) so that the tape recording of the call could be replayed, the Haines Directory and the street guides consulted, and other communities having street names identical or similar to the street name given by the caller immediately notified. On Amalia DeLong's call, no follow-up of any kind took place. The call was treated as a fake.

I
Our discussion of the questions raised concerning liability must start with Riss v City of New York (22 NY2d 579, supra) in which the court found no legal responsibility for the tragic consequences of the city's failure to furnish police protection despite proof of Linda Riss' repeated and agonized pleas for assistance. In an opinion by then Associate Judge Breitel, the court, with one dissent, concluded: "there is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts, in the absence of legislation, to carve out an area of tort liability for police protection to members of the public. Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses [. . .]" [. . .]. This fundamental rule remains the law [. . .]. As noted in Riss and in [. . .], when a relationship is created between the police and an individual which gives rise to a special duty, the municipality loses its governmental immunity and liability may result. Courts have found such a special duty to be owing "to informers [. . .], undercover agents [. . .], persons under court orders of protection [. . .] and school children for whom the municipality has assumed the responsibility of providing crossing guards.

Whether Amalia DeLong was a person to whom the municipalities owed a special duty so as to be accountable for negligence in the performance of that duty is the question. Defendants argue that the county and city, in maintaining the 911 emergency call system for the public generally, assumed no special obligation to protect Amalia DeLong, and that, therefore, the case is governed by the holding of no liability in Riss. They distinguish Schuster v City of New York (supra) where the special relationship giving rise to liability was found in the obligation owed by the municipality to an informer who, at the risk of his life, had given information to the police.

The defendants' argument misses the mark. It is not the establishment of the emergency call system to serve the Village of Kenmore, standing alone, which creates the duty. It is the holding out of the 911 number as one to be called by someone in need of assistance, Amalia DeLong's placing of the call in reliance on that holding out, and her further reliance on the response to her plea for immediate help: "Okay, right away." This is not a mere failure to furnish police protection owed to the public generally but a case where the municipality has assumed a duty to a particular person which it must perform "in a nonnegligent manner, [although without the] voluntary assumption of that duty, none would have otherwise existed" [. . .] The complaint writer's acceptance of the call, his transmittal of the complaint card to the dispatcher and the dispatcher's radio calls to the police cars were affirmative actions setting the emergency machinery in motion. This voluntary assumption of a duty to act carried with it the obligation to act with reasonable care.

But, defendants remind us, failing to fulfill an undertaking to provide police protection does not result in municipal liability unless it be shown that the police conduct in some way increased the risk [. . .] They maintain that the evidence does not establish that the conduct had "gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury" [. . .]. In other words, defendants argue, although the hand may have been set to the task and withdrawn [. . .] it has resulted in no harm. We disagree.

While there could in this case be no direct evidence that Amalia DeLong relied to her ultimate detriment on the assurance of police assistance, the circumstantial evidence strongly suggests that she did so. Instead of summoning help from the village police or from her neighbors (one of whom was a captain in the Kenmore Police Department), she waited for the response to her 911 call. Instead of taking her baby and going out the front door where she would have been safe, she remained defenseless in the house.

Nor can we agree that the proof was insufficient to establish proximate cause. Where different inferences may reasonably be drawn from the evidence, the question is one for the jury [. . .]. Here, the jury could have concluded that, without the critical mistakes in handling the initial transmission and the subsequent failure to conduct a follow-up, a Village of Kenmore police car would have arrived in time to prevent the attack or to stop the intruder before he could inflict the final fatal wound to the neck.

Finally, contrary to the city's contentions, we view the evidence as supporting the jury's conclusion that the city and county were equally at fault. We find no merit in defendants' other arguments on the liability issue.

II

Accordingly, the judgment insofar as it awards damages for conscious pain and suffering, should be affirmed.