Procedural History: The trial court (Supreme Court) dismissed the complaint. A divided Appellate Division also dismissed the complaint after both parties had rested but prior to submission to the jury.
Facts: Linda Riss was terrorized by an ex-boyfriend, Pugach. He warned that if he couldn’t have her then nobody else could. She sought police protection unsuccessfully. After her engagement to another man, she received another threat and again sought police protection. After it was declined again, the next day, a thug hired by Pugach threw lye in plaintiff’s face and she had permanent scarring, and was left blind in one eye and with little vision in the other.
Issue: Should the police be liable for failing to protect a member of the public?
Rules: The removal of sovereign immunity for tort liability was accomplished after legislative enactment and not by any judicial power.
There is no tort duty to provide police protection, except in cases of “special relationship,” where there is:
- An assumption by the municipality through promises or action, of an affirmative duty to act on behalf of the party who was injured,
- Knowledge on the part of the municipality’s agents that inaction could lead to harm,
- Some form of direct contact between the municipality’s agents and the injured party,
- The party had justifiable reliance on the municipality’s undertaking.
Application: There is no warrant in judicial tradition or in the proper allocation of the power 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.
Conclusion: Because the court feels it is up to statute and not to the court to impose tort liability for police protection to members of the public, there is no breach of duty and the judgment of dismissal is affirmed.