With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”
Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.
On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.
On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.
Carmen lived after a month in a coma but with horrific injuries:
- obliterated mouth and jaw requiring several reconstructive surgeries
- inability to eat or talk for a year
- permanent pain
- memory loss
- facial spasms
- post-traumatic stress disorder
Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:
- the day before she was shot Perez had called and threatened to kill her
- she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
- she returned home
- the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez
The city denied ever receiving a call from Valdez advising that she’d received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.
On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).
Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).
In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.
The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.
The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.
Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court. UPDATE: On October 18, 2011, the Court of Appeals, in a divided decision, affirmed the dismissal of this case.
- The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
- The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
- There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.