Kircher v. City Of Jamestown

543 N.E.2d 443 (1989)

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Nature of the Case

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Facts

P was entering her car in a drug store parking lot, was accosted by one Brian Blanco, assaulted and pulled into the car by Blanco, who then sped off. Karen Allen and Richard Skinner gave chase but lost sight of P's car a block or so from the parking lot. They came upon a Jamestown police officer, Bruce Carlson, who was giving assistance to the driver of a disabled municipal vehicle. Skinner, who was acquainted with Carlson, told him what they had observed, giving him a description of Blanco and the license plate number and description of P's automobile. Skinner and Allen left after Carlson advised them that he would 'call it in' and returned to the scene of the assault where they obtained P's name and address from the drug store pharmacist. They then drove by P's house two or three times 'to see if the car was there,' but made no further effort to make any additional report to the police, believing that the report to Carlson would suffice. As it happened, however, Carlson never reported the incident and had taken no further action on the matter. Blanco drove P to Gerry, New York, where he repeatedly raped and assaulted her, fracturing her larynx and inflicting numerous other injuries. She was rescued some 12 hours later. Throughout her abduction, her assailant operated her automobile 'on main thoroughfares in heavy traffic.' P sued the City of Jamestown and Carlson. Ds moved to dismiss the complaints for failure to state a cause of action or, alternatively, for summary judgment, contending that P had not demonstrated the existence of a 'special relationship' between herself and the municipality. The Supreme Court denied Ds' motion. The court concluded that D owed a duty to P 'to do more than acquiesce upon learning that a crime had just been committed' and that the breach of such duty could constitute negligence making defendants liable for any resulting injuries. The Appellate Division reversed and granted Ds' motion for summary judgment. The requisite 'special relationship' had not been established and commented that the 'failure to respond to the report of possible criminal activity or to offer assistance in a situation arguably requiring police intervention amounts to a failure to provide police protection to the general public and is within the scope of governmental immunity,' P appealed.