[143 N.Y.S.2d 779] Harry H. Lipsig, Joseph N. Friedman, New York City, for appellant.
Fred Iscol, New York City (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, New York City, Corp. Countsel), for respondent.
Before NOLAN P. J., and WENZEL, MacCRATE, BELDOCK and UGHETTA, JJ.
Plaintiff seek damages claimed to have been sustained because of the failure of the police to protect adequately his intestate from violence after the latter had informed the police of the whereabouts of a notorious criminal who was then arrested. It is alleged that the police were notified of threats against intestate's person and life, but withdrew protection and refused to grant protection after request. Recovery is sought also because the police falsely represented to the intestate that he was [143 N.Y.S.2d 780] not in danger because of the threats, whereby he was induced to go onto a public highway where he was shot.
When the State waived its immunity from suit for acts of its servants or agents, it accompanied the waiver by a provision that its liability should be determined by the same rules of law as are applied to individuals and corporations in an action in the Supreme Court, Court of Claims Act, § 8.
The complaint does not identify intestate's slayer by name, description or as a relative or associate of the criminal informed against, or as one who had threatened harm to the intestate or his family, or one the police knew or had reason to believe would harm the intestate because he had informed as to the whereabouts of the criminal sought by the police. Neither is there allegation as to the identity of the persons who made threats or whether they were in or out of the city of New York when the threats were made. It is not alleged that the intestate was taken into protective custody by the police or that they had ordered him to report if or when he desired to leave his home, or that he advised them he was leaving his home on the day he met his death. No allegation of the complaint indicates that he was subjected to restraint by the police after the criminal had been apprehended.
No liability arose under section 1848 of the Penal Law. Injury or death did not occur while the intestate was aiding the police to arrest the criminal. The complaint states no facts which
would warrant recovery by reason of the provisions of any other statute.
There is no claim of any contractual liability. The intestate was not an employee of the police department. Neither did the police assume the duty of a guardian toward him. Cf. Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872. Any liability for the death can be predicated solely on failure to perform a duty to give intestate special protection. As a member of the general public, no duty of special protection was owed to him by the police. Murrain v. Wilson Line, Inc., 270 A.D. 372, 59 N.Y.S.2d 750, affirmed 296 N.Y. 845, 72 N.E.2d 29; Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342; Rocco v. City of New York, 282 A.D. 1012, 126 N.Y.S.2d 198. Neither by statute nor under the Constitution nor by contract was there imposed on the sovereign State or its agents and servants a duty to give special police protection to the intestate. If there was a duty to afford him special police protection from injury after and because he had informed, such duty is court-created. In re Quarles and Butler, 158 U.S. 532, 536, 15 S.Ct. 959, 39 L.Ed. 1080. If we assume, without deciding, that such duty did exist, it called for reasonable protection only against acts of violence by the criminal or his associates or agents or those who had made threats, the identity of whom the police had knowledge or notice, and which violence by such persons might reasonably [143 N.Y.S.2d 781] have been anticipated. No fact is pleaded from which it can be inferred that the violence here was inflicted because the intestate had informed or that the police should have protected him against violence by the assailant. Nor does the complaint allege any facts or circumstances known by the police which could establish that they knew or should have known who were the persons who made the threats or that the slayer was one of such persons or that the representations as to the nature of the threats were false and not mere statements of opinion.
The order and judgment should be affirmed, without costs.
Order granting motion to dismiss the complaint for insufficiency, and judgment entered thereon, affirmed, without costs.
NOLAN, P. J., and WENZEL, MacCRATE and UGHETTA, JJ., concur.
BELDOCK, Justice (dissenting).
At the outset it should be noted that in this case we are not concerned with the sovereign's outmoded immunity from civil liability for negligence in the performance of a governmental function. Such immunity no longer exists. Whether for a negligent act of commission or omission the sovereign is now liable to any person who, as an individual, is entitled to the proper performance of the governmental function and who has been damaged by reason of the sovereign's careless ...