When we hear about an assault that seemed preventable, particularly when the police were called, it is natural to wonder why the police aren't called to task when their response doesn't measure up.

So, here's the general rule:

"[A] municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual" (Brown v City of New York, 73 AD3d 1113, 1114 [2d Dept 2012]). Thus, to support a negligence claim, the facts must demonstrate that a special duty was created between the municipality and the injured party (see Valdez v City of New York, 18 NY3d 69, 75 [2011]). In addition, even where special duty is established, a municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense of immunity and proves that the alleged negligent act or omission involved the exercise of discretionary authority (see id. at 76). However, a plaintiff must first establish the existence of a public entity defendant's special duty before a court need address arguments concerning governmental immunity (Metz v State of New York, 20 NY3d 175, 179 [Ct App 2012]; Valdez, 18 NY3d at 80).

To that end, there are three ways that a public entity or municipality may trigger a special duty: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (McLean v City of New York, 12 NY3d 194, 199 [Ct App 2009][quoting Pelaez v Seide, 2 NY3d 186, 199-200 [Ct App 2004]). The second manner of triggering a special duty is the only one at issue here.

In Cuffy v City of New York, 69 NY2d 255 [1987], the Court of Appeals clearly identified the elements for finding a voluntary assumption of duty:

"(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" (id. at 260).

"But when is that reliance justified?" you ask.

To constitute justifiable reliance, a plaintiff must show that a defendant's 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 in had they never assumed the duty" (Clark v Town of Ticonderoga, 291 AD2d 597, 599 [3d Dept 2002]).

As I'm sure you can imagine, those circumstances are rare indeed.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer