Police do not owe a special duty to victims of domestic violence who hold an order of protection

New York


United States

In Howell v. City of New York, 2022 NY Slip Op 6633 (N.Y. 2022), the plaintiff's ex-boyfriend brutally attacked her and pushed her out of a third-floor window, in violation of an order of protection. The plaintiff commenced a negligence action against the defendants, the City of New York and two police officers, alleging that they failed to provide her sufficient protection to prevent the assault.

Majority’s Ruling

The majority of the New York Court of Appeals affirmed the lower court’s decision granting summary judgment in favor of the defendants. The majority noted that the defendants were undisputedly engaged in a governmental function, policing, when the plaintiff's negligence claims arose such that the “special duty” rule applied. Under this rule, the plaintiff was required to prove that the defendants owed her a special duty of care by establishing four elements:

  1. an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 
  2. knowledge on the part of the municipality's agents that inaction could lead to harm;
  3. some form of direct contact between the municipality's agents and the injured party; and,
  4. that party's justifiable reliance on the municipality's affirmative undertaking.

The majority of the Court of Appeals held that the plaintiff failed to establish the fourth element, and therefore, her case could not succeed.

Dissent’s Opinion

Justice Wilson wrote a scathing dissent in which he explained, in detail, the circumstances of the assault and the history of police non-intervention with the ex-boyfriend despite the fact that a protection order was in place. Justice Wilson noted that, on numerous occasions, police officers observed the plaintiff’s ex-boyfriend in violation of the order of protection after the plaintiff called the police for help. Each time, the police officers refused to arrest the ex-boyfriend despite a statutory requirement that they do so. Justice Wilson stated that “orders of protection are supposed to mean something.”

Among other issues, Justice Wilson held that N.Y. Crim. Proc. Law § 140.10(4)(b) does establish a statutory special duty for holders of domestic violence protective orders and, in contrast to the majority, held that the plaintiff’s negligence suit should not have been dismissed on the grounds that no such “special duty” existed. Citing, Pelaez v Seide (2 N.Y.3d 186, 200 [2004]), he explained that a “special duty” may be fairly implied when:

  1. the plaintiff is one of the class for whose particular benefit the statute was enacted; 
  2. recognition of a private right of action would promote the legislative purpose of the governing statute; and,
  3. to do so would be consistent with the legislative scheme.

The first prong was indisputably met. The plaintiff, who had eight domestic violence orders of protection against the ex-boyfriend was a member of the class for whose benefit N.Y. Crim. Proc. Law § 140.10(4) was enacted—victims of domestic violence who have obtained orders of protection. 

The second prong was satisfied by the legislative history of the Domestic Violence Intervention Act, which makes it clear that the Legislature believed it extraordinarily important that perpetrators of domestic violence who violated orders of protection would be arrested.

With respect to the third prong, Justice Wilson noted that the Legislature imposed a duty, but provided no public or private enforcement mechanism, and no preexisting mechanism existed by which the new statutory duty could be enforced. Thus, the third factor weighs in favor of implying a private right of action.

December 20, 2022
Howell v. City of New York, 2022 NY Slip Op 6633 (N.Y. 2022)
Author: Carli Kadish
New York Courts