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XII. Duty: Governmental Liability

Government entities perform unique functions for, and perhaps accrue responsibilities to, their citizenries. When they are said to bungle them, can they be called to answer in tort for resulting harm? The answer, of course, is complicated. An early posture of sovereign immunity, drawn from a king’s being above (or at least the source of) the law, meant that without more, suits alleging negligence by government actors might flatly fail. Exceptions to sovereign immunity have been created piecemeal, sometimes by judges acting at common law, and sometimes by statute, whether state or Federal for their respective jurisdictions.

One typical dividing line for liability is whether a government is acting in a “proprietary” capacity – i.e. as a private actor. If I slip on a freshly mopped but unmarked floor in the post office, why should sovereign immunity kick in for the Postal Service when a regular shopkeeper would have to answer for negligence? Another tends to invoke our previous duty analysis of action vs. inaction: police protection may not be proprietary (the existence of private security firms notwithstanding), but a failure to respond to a 911 call may count as “inaction” rather than action. At the very least, we must explore, as a matter of law, the extent of legal duty accepted by a municipality when it undertakes to offer policing services. (Indeed, would a failure to offer any services at all, as compared to offering them poorly, be subject to suit?) Our first cluster of readings examines some of these problems, along with the rationales for shielding some acts or omissions in policing from suit. It may be that act/omission isn’t really the key distinction. Rather, concern about the courts’ intrusion into budgeting and planning by the executive and legislative branches may be the touchstone.

  • 1 Riss v. City of New York--"The Lye in the Face Case"

    Should the government pay for a failure to protect an individual citizen from harm?

    Notes: For six months, a rejected suitor threatened to kill or maim the plaintiff if she did not give herself to him. Plaintiff pleaded with the police for protection, to no avail. After plaintiff became engaged to another man, she received a phone call warning her that it was her ‘last chance.’ The plaintiff begged the police for help once more, but was refused. The next day, a hired thug threw lye in the plaintiff’s face, blinding one eye, partially blinding her in the other eye, and permanently scarring her face.
    1
    293 N.Y.S.2d 897
    2
    22 N.Y.2d 579, 240 N.E.2d 860
    3
    Linda RISS, Appellant,
    v.
    CITY OF NEW YORK, Respondent.
    4
    Court of Appeals of New York.
    5
    Argued Feb. 27, 1968.
    Decided July 2, 1968.
    6

    Eugene J. Morris and Nathaniel Rothstein, New York City, for appellant.

    7

    [22 N.Y.2d 580] J. Lee Rankin, Corporation Counsel (Alfred Weinstein and Stanley Buchsbaum, New York City, of counsel), for respondent.

    8
    [22 N.Y.2d 581] BREITEL, Judge.
    9

    This appeal presents, in a very sympathetic framework, the issue of the liability of a municipality for failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of such protection. The facts are amply described in the dissenting opinion and no useful purpose would be served by repetition. The issue arises upon the affirmance by a divided Appellate Division of a dismissal of the complaint, after both sides had rested but before submission to the jury.

    10

    It is necessary immediately to distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of [293 N.Y.S.2d 898] rapid transit systems, hospitals, and places of public assembly. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law. The ground for liability is the provision of the services or facilities for the direct use by members of the public.

    11

    In contrast, this case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. (See, e.g., Messineo v. City of Amsterdam, 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138--139, 256 N.Y.S.2d 595, 596--598, 204 N.E.2d 635, 636--637; Steitz v. City of Beacon, 295 N.Y. 51, 56, 64 N.E.2d 704, 706, 163 A.L.R. 342, 18 McQuillin, Municipal Corporations (3d ed.), §§ 53.79--53.80.) The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to [22 N.Y.2d 582] how those resources may be deployed. For the courts to proclaim a new and general duty of protection in the law of tort, even to those who may [240 N.E.2d 861] be the particular seekers of protection based on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. This is quite different from the predictable allocation of resources and liabilities when public hospitals, rapid transit systems, or even highways are provided.

    12

    Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility (Van Alstyne, Governmental Tort Liability, 10 U.C.L.A.L.Rev. 463, 467; Note, 60 Mich.L.Rev. 379, 382).

    13

    It is notable that the removal of sovereign immunity for tort liability was accomplished after legislative enactment and not by any judicial arrogation of power (Court of Claims Act, § 8). It is equally notable that for many years, since as far back as 1909 in this State, there was by statute municipal liability for losses sustained as a result of riot (General Municipal Law, § 71). Yet even this class of liability has for some years been suspended by legislative action (New York State Defense Emergency Act (L.1951, ch. 784, § 113, subd. 3; § 121, as last amd. by L. 1968, ch. 115)), a factor of considerable significance.

    14

    When one considers the greatly increased amount of crime committed throughout the cities, but especially in certain portions of them, with a repetitive and predictable pattern, it is easy to see the consequences of [293 N.Y.S.2d 899] fixing municipal liability upon a showing of probable need for and request for protection. To be sure these are grave problems at the present time, exciting high priority activity on the part of the national, State and local governments, to which the answers are neither simple, known, or presently within reasonable controls. To foist a presumed cure for these problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts.

    15

    Nor is the analysis progressed by the analogy to compensation for losses sustained. It is instructive that the Crime Victims Compensation and 'Good Samaritan' statutes, compensating limited classes of victims of crime, were enacted only after the [22 N.Y.2d 583] most careful study of conditions and the impact of such a scheme upon governmental operations and the public fisc (Executive Law, art. 22, § 620 et seq. (L.1966, ch. 894); Administrative Code of City of New York, ch. 3, tit. A, § 67--3.2). And then the limitations were particular and narrow.

    16

    For all of these reasons, there is no warrant in judicial tradition or in the proper allocation of the powers 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. Quite distinguishable, of course, is the situation where the police authorities undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which then materialize into actual losses (Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534).

    17

    Accordingly, the order of the Appellate Division affirming the judgment of dismissal should be affirmed.

    18
    KEATING, Judge (dissenting).
    19

    Certainly, the record in this case, sound legal analysis, relevant policy considerations and even precedent cannot account for or sustain the result which the majority have here reached. For the result is premised upon a legal rule which long ago should have been abandoned, having lost any justification it might once have had. Despite almost universal condemnation by legal scholars, the rule survives, finding its continuing strength, not in its power to persuade, but in its ability to arouse unwarranted judicial fears of the consequences of overturning it.

    20

    [240 N.E.2d 862] Linda Riss, an attractive young woman, was for more than six months terrorized by a rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant, masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if she did not yield to him: 'If I can't have you, no one else will have you, and when I get through with you, no one else will want you'. In fear for her life, she went to those charged by law with the duty of preserving [293 N.Y.S.2d 900] and safeguarding the lives of the citizens and residents of this State. Linda's repeated and almost pathetic pleas for aid were received with little more than indifference. Whatever help she was given was not commensurate with the identifiable danger. On June 14, 1959 Linda became engaged to another man. At a party held to [22 N.Y.2d 584] celebrate the event, she received a phone call warning her that it was her 'last chance'. Completely distraught, she called the police, begging for help, but was refused. The next day Pugach carried out his dire threats in the very manner he had foretold by having a hired thug throw lye in Linda's face. Linda was blinded in one eye, lost a good portion of her vision in the other, and her face was permanently scarred. After the assault the authorities concluded that there was some basis for Linda's fears, and for the next three and one-half years, she was given around-the-clock protection.

    21

    No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda's ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.

    22

    Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm. With compelling logic, she can point out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the courts would certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose duties are imposed by law and include the prevention of crime (New York City Charter, § 435) and, consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?

    23

    Linda's reasoning seems so eminently sensible that surely it must come as a shock to her and to every citizen to hear the city argue and to learn that this court decides that the city has no duty to provide police protection to any given individual. What makes the city's position particularly difficult to understand is that, in conformity, to the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, § 1897). Thus, by a rather bitter irony she was required to rely for protection [22 N.Y.2d 585] on the City of New York which now denies all responsibility to her.

    24

    [293 N.Y.S.2d 901] It is not a distortion to summarize the essence of the city's case here in the following language: 'Because we owe a duty to everybody, we owe it to nobody.' Were it not for the fact that this position has been hallowed by much ancient and revered precedent, we would surely dismiss it as preposterous. To say that there is no duty is, of course, to start with the conclusion. The question is whether or not there should be liability for the negligent failure to provide adequate police protection.

    25

    The foremost justification repeatedly urged for the existing rule is the claim that the State and the municipalities will be exposed to limitless liability. The city invokes the specter of a 'crushing burden' (Steitz v. City of Beacon, 295 N.Y. 51, 55, 64 N.E.2d 704, 706, 163 A.L.R. 342) [240 N.E.2d 863] if we should depart from the existing rule and enunciate even the limited proposition that the State and its municipalities can be held liable for the negligent acts of their police employees in executing whatever police services they do in fact provide (cf. dissenting opn. per DESMOND, J., in Steitz v. City of Beacon, supra, p. 57, 64 N.E.2d p. 707; dissenting opn. per Beldock, J., in Schuster v. City of New York, 286 App.Div. 389, 391, 143 N.Y.S.2d 778, 781).

    26

    The fear of financial disaster is a myth. The same argument was made a generation ago in opposition to proposals that the State waive its defense of 'sovereign immunity'. The prophecy proved false then, and it would now. The supposed astronomical financial burden does not and would not exist. No municipality has gone bankrupt because it has had to respond in damages when a policeman causes injury through carelessly driving a police car or in the thousands of other situations where, by judicial fiat or legislative enactment, the State and its subdivisions have been held liable for the tortious conduct of their employees. Thus, in the past four or five years, New York City has been presented with an average of some 10,000 claims each year. The figure would sound ominous except for the fact the city has been paying out less than $8,000,000 on tort claims each year and this amount includes all those sidewalk defect and snow and ice cases about which the courts fret so often. (Reports submitted by the Comptroller of the City of New York to the Comptroller of the State of New York pursuant to to General Municipal Law, § 50-f.) Court delay has reduced the figure paid [22 N.Y.2d 586] somewhat, but not substantially. Certainly this is a slight burden in a budget of more than six billion dollars (less than two tenths of 1%) and of no importance as compared to the injustice of permitting unredressed wrongs to continue to go unrepaired. That Linda Riss should be asked to bear the loss, which should properly fall on the city if we assume, as we must, in the present posture of the case, that her injuries resulted from the city's failure to provide sufficient police to protect Linda is contrary to the most elementary notions of justice.

    27

    [293 N.Y.S.2d 902] The statement in the majority opinion that there are no predictable limits to the potential liability for failure to provide adequate police protection as compared to other areas of municipal liability is, of course, untenable. When immunity in other areas of governmental activity was removed, the same lack of predictable limits existed. Yet, disaster did not ensue.

    28

    Another variation of the 'crushing burden' argument is the contention that, every time a crime is committed, the city will be sued and the claim will be made that it resulted from inadequate police protection. Here, again, is an attempt to arouse the 'anxiety of the courts about new theories of liability which may have a far-reaching effect'. (Spiegler v. City of New Rochelle, 39 Misc.2d 720, 723, 241 N.Y.S.2d 967, 970, affd. on opn. below 19 A.D.2d 751, 243 N.Y.S.2d 74, mot. for lv. to app. den. 13 N.Y.2d 600, 247 N.Y.S.2d 1026, 196 N.E.2d 891.) And here too the underlying assumption of the argument is fallacious because it assumes that a strict liability standard is to be imposed and that the courts would prove completely unable to apply general principles of tort liability in a reasonable fashion in the context of actions arising from the negligent acts of police and fire personnel. The argument is also made as if there were no such legal principles as fault, proximate cause or foreseeability, all of which operate to keep liability within reasonable bounds. No one is contending that the police must be at the scene of every potential crime or must provide a personal bodyguard to every person who walks into a police station and claims to have been threatened. They need only act as a reasonable man would under the circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to substantiate the alleged threat, the matter may be put aside and other matters attended to. If, however, the claims prove to have some basis, appropriate steps would be necessary.

    29

    [240 N.E.2d 864] [22 N.Y.2d 587] The instant case provides an excellent illustration of the limits which the courts can draw. No one would claim that, under the facts here, the police were negligent when they did not give Linda protection after her first calls or visits to the police station in February of 1959. The preliminary investigation was sufficient. If Linda had been attacked at this point, clearly there would be no liability here. When, however, as time went on and it was established that Linda was a reputable person, that other verifiable attempts to injure her or intimidate her had taken place, that other witnesses were available to support her claim that her life was being threatened, something more was required--either by way of further investigation or protection--than the statement that was made by one detective to Linda that she would have to be hurt before the police could do anything for her.

    30

    [293 N.Y.S.2d 903] In dismissing the complaint, the trial court noted that there are many crimes being committed daily and the police force is inadequate to deal with its 'tremendous responsibilities'. The point is not addressed to the facts of this case. Even if it were, however, a distinction must be made. It may be quite reasonable to say that the City of New York is not required to hire sufficient police to protect every piece of property threatened during mass riots. The possibility of riots may even be foreseeable, but the occurrence is sufficiently uncommon that the city should not be required to bear the cost of having a redundancy of men for normal operations. But it is going beyond the bounds of required judicial moderation if the city is permitted to escape liability in a situation such as the one at bar. If the police force of the City of New York is so understaffed that it is unable to cope with the everyday problem posed by the relatively few cases where single, known indicviduals threaten the lives of other persons, then indeed we have reached the danger line and the lives of all of us are in peril. If the police department is in such a deplorable state that the city, because of insufficient manpower, is truly unable to protect persons in Linda Riss' position, then liability not only should, but must be imposed. It will act as an effective inducement for public officials to provide at least a minimally adequate number of police. If local officials are not willing to meet even such a low standard, I see no reason for the courts to abet such irresponsibility.

    31

    [22 N.Y.2d 588] It is also contended that liability for inadequate police protection will make the courts the arbiters of decisions taken by the Police Commissioner in allocating his manpower and his resources. We are not dealing here with a situation where the injury or loss occurred as a result of a conscious choice of policy made by those exercising high administrative responsibility after a complete and thorough deliberation of various alternatives. There was no major policy decision taken by the Police Commissioner to disregard Linda Riss' appeal for help because there was absolutely no manpower available to deal with Pugach. This 'garden variety' negligence case arose in the course of 'day-by-day operations of government' (Weiss v. Fote, 7 N.Y.2d 579, 585, 200 N.Y.S.2d 409, 413, 167 N.E.2d 63, 66). Linda Riss' tragedy resulted not from high policy or inadequate manpower, but plain negligence on the part of persons with whom Linda dealt. (See Lubelfeld v. City of New York, 4 N.Y.2d 455, 176 N.Y.S.2d 302, 151 N.E.2d 862; Prosser, Torts (3d ed.), pp. 999--1001; Peck, Federal Tort Claims--Discretionary Function, 31 Wash.L.Rev. 207.)

    32

    More significant, however, is the fundamental flaw in the reasoning behind the argument alleging judicial interference. It is a complete oversimplification of the problem of municipal tort liability. What it ignores is the fact that indirectly courts are reviewing administrative [293 N.Y.S.2d 904] practices in almost every tort case against the State or a municipality, including even decisions of the Police Commissioner. Every time a municipal hospital is held liable for malpractice resulting from inadequate record-keeping, the courts are in effect making a [240 N.E.2d 865] determination that the municipality should have hired or assigned more clerical help or more competent help to medical records or should have done something to improve its record-keeping procedures so that the particular injury would not have occurred. Every time a municipality is held liable for a defective sidewalk, it is as if the courts are saying that more money and resources should have been allocated to sidewalk repair, instead of to other public services.

    33

    The situation is nowise different in the case of police protection, Whatever effects there may be on police administration will be one of degree, not kind. In McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419, we held the city liable where a drunken policeman, while off duty, shot and killed a citizen in an unprovoked assault. The policeman had a long history of being a [22 N.Y.2d 589] troublemaker, having been brought up before the Police Commissioner on drunkenness charges on three prior occasions. In imposing liability on the city, were we not in effect overruling the Commissioner's judgment in retaining the policeman on the force and saying his decision was so unreasonable that the city should be required to pay damages? (See, also, Meistinsky v. City of New York, 309 N.Y. 998, 132 N.E.2d 900.)

    34

    The truth of the matter, however, is that the courts are not making policy decisions for public officials. In all these municipal negligence cases, the courts are doing two things. First, they apply the principles of vicarious liability to the operations of government. Courts would not insulate the city from liability for the ordinary negligence of members of the highway department. There is no basis for treating the members of the police department differently.

    35

    Second, and most important, to the extent that the injury results from the failure to allocate sufficient funds and resources to meet a minimum standard of public administration, public officials are presented with two alternatives: either improve public administration or accept the cost of compensating injured persons. Thus, if we were to hold the city liable here for the negligence of the police, courts would no more be interfering with the operations of the police department than they 'meddle' in the affairs of the highway department when they hold the municipality liable for personal injuries resulting from defective sidewalks, or a private employer for the negligence of his employees. In other words, all the courts do in these municipal negligence cases is require officials to weigh the consequences of their decisions. If Linda Riss' injury resulted from the failure of the city to pay sufficient salaries [293 N.Y.S.2d 905] to attract qualified and sufficient personnel, the full cost of that choice should become acknowledged in the same way as it has in other areas of municipal tort liability. Perhaps officials will find it less costly to choose the alternative of paying damages than changing their existing practices. That may be well and good, but the price for the refusal to provide for an adequate police force should not be borne by Linda Riss and all the other innocent victims of such decisions.

    36

    What has existed until now is that the City of New York and other municipalities have been able to engage in a sort of false [22 N.Y.2d 590] bookkeeping in which the real costs of inadequate or incompetent police protection have been hidden by charging the expenditures to the individuals who have sustained often catastrophic losses rather than to the community where it belongs, because the latter had the power to prevent the losses.

    37

    Although in modern times the compensatory nature of tort law has generally been the one most emphasized, one of its most important functions has been and is its normative aspect. It sets forth standards of conduct which ought to be followed. The penalty for failing to do so is to pay pecuniary damages. At one time the government was completely immunized from this salutary control. This is much less so now, and the imposition of liability has had healthy side effects. In many [240 N.E.2d 866] areas, it has resulted in the adoption of better and more considered procedures just as workmen's compensation resulted in improved industrial safety practices. To visit liability upon the city here will no doubt have similar constructive effects. No 'presumed cure' for the problem of crime is being 'foisted' upon the city as the majority opinion charges. The methods of dealing with the problem of crime are left completely to the city's discretion. All that the courts can do is make sure that the costs of the city's and its employees' mistakes are placed where they properly belong. Thus, every reason used to sustain the rule that there is no duty to offer police protection to any individual turns out on close analysis to be of little substance.

    38

    The city properly cites Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S. 595, 204 N.E.2d 635, Steitz (supra) and other cases in support of its position. But what is of importance here are cases such as Bernardine (infra), Meistinsky (supra), Runkel (infra) and Schuster (infra), for these cases signify the direction in which the law is proceeding. They indicate how, step by step, New York courts are moving to return[*]--albeit with some notable setbacks--toward the day when the government, in carrying out its various functions, will be held equally responsible for the negligent acts of its employees as would a private employer. Bernardine v. City of New York, 294 N.Y. 361, 62 [293 N.Y.S.2d 906] N.E.2d 604, 161 A.L.R. 364, one of the earliest cases, is cited generally for the proposition that the State's waiver of [22 N.Y.2d 591] 'SOVEREIGN IMMUNITY' IS APPLICABLE TO ITS subdivisions. what is of greater interest about the case is that it premised liability on pure common-law negligence. But although 'sovereign immunity', by that name, supposedly died in Bernardine v. City of New York, it has been revived in a new form. It now goes by the name 'public duty'.

    39

    Thus, in Steitz v. City of Beacon, 295 N.Y. 51, 64 N.E.2d 704, 163 A.L.R. 342, relying on Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199, a pre-waiver case, the old rule was revived under a new guise that the duty to furnish police and fire protection runs to the general public and not to any individual. Yet in Runkel v. Homelsky, 286 App.Div. 1101, 145 N.Y.S.2d 729, affd. 3 N.Y.2d 857, 166 N.Y.S.2d 307, 145 N.E.2d 23, we held the city liable for failure to order the removal of a vacant building where a city inspector had actual notice that the building was in imminent danger of collapse but did nothing. (See, also, Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485.) Logically, there was nothing left to Seitz after Runkel. Nevertheless, again in Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, supra, in a case involving the failure to enforce a fire safety regulation, we again retreated and held that 'liability arises out of a statute only in limited instances where disregard of the command of the statute results in damage to one of the class for whose special benefit the statute was enacted.' (Id., p. 139, 256 N.Y.S.2d p. 598, 204 N.E.2d p. 637.) (See, also, Messineo v. City of Amsterdam, 17 N.Y.2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163.)

    40

    In Infosino v. City of New York, 25 A.D.2d 841, 270 N.Y.S.2d 146, mot. for lv. to app. den. sub nom. Carroll v. City of New York, 18 N.Y.2d 583, 277 N.Y.S.2d 1025, 223 N.E.2d 797), liability was again denied, but in that case there was no negligence involved since there was no notice to the city of the violation of the provisions of the Administrative Code. In addition, there was a serious question of proximate cause in the case. To deny liability on ordinary principles of tort law offers a far better approach to the question of municipal tort [240 N.E.2d 867] liability than the fiction that there is no duty running to the general public.

    41

    The majority opinion would explain the result here as involving the protection of the public from an 'external hazard.' This attempt to reconcile the case law does not withstand analysis. Is not a blizzard or snowstorm an 'external hazard'? Analytically, the problems of providing adequate police protection and snow removal are indistinguishable.

    42

    [22 N.Y.2d 592] Fortunately, this court has avoided the misfeasance-nonfeasance doctrine (Runkel v. Homelsky, supra; McCrink v. City of New York, [293 N.Y.S.2d 907] supra; Schuster v. City of New York, 5 N.Y.2d 75, 82, 180 N.Y.S.2d 265, 270, 154 N.E.2d 534, 538) which is still another untenable attempt to limit the consequences of the State's waiver of liability. As Chief Judge DESMOND pointed out so often, the broad language of the waiver of 'sovereign immunity' in the Court of Claims Act (§ 8) should have been sufficient to cover the police and fire protection cases. (See, e.g., Steitz v. City of Beacon, 295 N.Y., pp. 58--59, 64 N.E.2d pp. 707--708, supra.) Therefore, the majority opinion's call for legislative action is answered by the fact that it has already occurred. The statute makes no exception for cases arising in the area of police and fire protection and no satisfactory explanation as to why section 8 of the Court of Claims Act is not applicable here is offered anywhere in the majority opinion. There are lower court cases holding the municipality might be held liable for the failure of the police to protect a person, where they had actual notice of a probable assault. (Isereau v. Stone, 207 Misc. 941, 140 N.Y.S.2d 585, revd. on other grounds 3 A.D.2d 243, 160 N.Y.S.2d 336; Canosa v. City of Mt. Vernon, N.Y.L.J., Feb. 18, 1965, p. 17, col. 6.)

    43

    Some indication of the movement of the law against the existing rule can be extracted from the fact that, whereas a few decades ago, the rule that there is no duty to provide adequate police and fire protection was attacked only intermittently, in recent years more and more insistently we have been asked to reject the rule. An assault can be found now in almost every recent volume of the New York Reports, but never before has the question 'been presented in so stark a manner as in the case before us' (FULD, Ch. J., in Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 751, 191 N.E.2d 279, 285, 95 A.L.R.2d 1).

    44

    The rule is Judge made and can be judicially modified. By statute, the judicially created doctrine of 'sovereign immunity' was destroyed. It was an unrighteous doctrine, carrying as it did the connotation that the government is above the law. Likewise, the law should be purged of all new evasions, which seek to avoid the full implications of the repeal of sovereign immunity.

    45

    No doubt in the future we shall have to draw limitations just as we have done in the area of private litigation, and no doubt some of these limitations will be unique to municipal liability [22 N.Y.2d 593] because the problems will not have any counterpart in private tort law. But if the lines are to be drawn, let them be delineated on candid considerations of policy and fairness and not on the fictions or relics of the doctrine of 'sovereign immunity'. Before reaching such questions, however, we must resolve the fundamental issue raised here and recognize that, having undertaken to [293 N.Y.S.2d 908] provide professional police and fire protection, municipalities cannot escape liability for damages caused by their failure to do even a minimally adequate job of it.

    46

    The Appellate Division did not adopt the 'no duty' theory, but said there was no negligence here because the danger was not imminent. Despite the fact that the majority of the Appellate Division 'agree(d) that certain rulings, and particularly the manner in which they were made, did not add to the appearance of a fair trial', and which, in fact, resulted in a wholly inadequate hearing, the majority found that the 'facts brought out on this [240 N.E.2d 868] trial do not show the presence of such imminent danger that extraordinary police activity was so indicated that the failure to take it can be deemed unreasonable conduct.' This finding does not stand examination and to its credit the city does not argue that this record would not support a finding of negligence. The danger to Linda was indeed imminent, and this fact could easily have been confirmed had there been competent police work.

    47

    Moreover, since this is an appeal from a dismissal of the complaint, we must give the plaintiff the benefit of every favorable inference. The Appellate Division's conclusion could only have been reached by ignoring the thrust of the plaintiff's claim and the evidence in the record. A few examples of the actions of the police should suffice to show the true state of the record. Linda Riss received a telephone call from a person who warned Linda that Pugach was arranging to have her beaten up. A detective learned the identity of the caller. He offered to arrest the caller, but plaintiff rejected that suggestion for the obvious reason that the informant was trying to help Linda. When Linda requested that Pugach be arrested, the detective said he could not do that because she had not yet been hurt. The statement was not so. It was and is a crime to conspire to injure someone. True there was no basis to arrest Pugach then, but that was only because the necessary leg work had not been done. No one [22 N.Y.2d 594] went to speak to the informant, who might have furnished additional leads. Linda claimed to be receiving telephone calls almost every day. These calls could have been monitored for a few days to obtain evidence against Pugach. Any number of reasonable alternatives presented themselves. A case against Pugach could have been developed which would have at least put him away for a while or altered the situation entirely. But, if necessary, some police protection should have been afforded.

    48

    Perhaps, on a fuller record after a true trial on the merits, the city's position will not appear so damaging as it does now. But with actual notice of danger and ample opportunity to confirm and take reasonable [293 N.Y.S.2d 909] remedial steps, a jury could find that the persons involved acted unreasonably and negligently. Linda Riss is entitled to have a jury determine the issue of the city's liability. This right should not be terminated by the adoption of a question-begging conclusion that there is no duty owed to her. The order of the Appellate Division should be reversed and a new trial granted.

    49

    FULD, C.J., and BURKE, SCILEPPI, BERGAN and JASEN, JJ., concur with BREITEL, JJ.

    50

    KEATING, J., dissents and votes to reverse in a separate opinion.

    51

    Order affirmed, without costs.

    52

    [*] Originally, the doctrine of 'sovereign immunity' was categorically rejected in New York. Lloyd, Municipal Tort Liability in New York, 23 N.Y.U.L.Rev. 278, 279--281.

  • 2 Schuster v. City of New York

    Should the government have a duty to protect citizens who are endangered by their assistance of the police?

    Notes: Plaintiff’s son died soon after being threatened for supplying information that lead to the arrest of a wanted criminal. Prior to his death, the plaintiff’s son had requested protection from the police department but had been refused. The plaintiff sued the police department for negligence, on the theory that the police’s failure to provide protection lead to his son’s death.
    1
    180 N.Y.S.2d 265
    2
    5 N.Y.2d 75, 154 N.E.2d 534
    3
    Max SCHUSTER, as Administrator of the Estate of Arnold L. Schuster, Deceased, Appellant,
    v.
    CITY OF NEW YORK, Respondent.
    4
    Court of Appeals of New York.
    5
    Nov. 11, 1958.
    6

    [180 N.Y.S.2d 268] [154 N.E.2d 536] [5 N.Y.2d 76] Upon original argument, Joseph N. Friedman and Harry H. Lipsig, New York City, for appellant.

    7

    Upon reargument, Albert Cohn, Harry H. Lipsig, Eugene J. Morris and Albert J. Rosenthal, New York City, for appellant.

    8

    [5 N.Y.2d 78] Peter Campbell Brown, Corp. Counsel, New York City (Fred Iscol and Seymour B. Quel, New York City, of counsel), for respondent.

    9
    [5 N.Y.2d 79] VAN VOORHIS, Judge.
    10

    Plaintiff's intestate supplied information to the Police Department of the City of New York leading to the arrest of a dangerous fugitive from justice known as Willie Sutton, a criminal of national reputation. Schuster's part in Sutton's capture was widely publicized. Schuster immediately received communications threatening his life, of which he notified the police. Three weeks later Schuster was shot and killed while approaching his home in the evening. There is no suggestion that Schuster was an underworld character. On the contrary, he appears to have been a public spirited young man who had studied Sutton's picture on an FBI flyer that had been posted in his father's dry-goods store, asking for Sutton's whereabouts.

    11

    The complaint is drawn upon the theory that Schuster was shot in consequence of the information about Sutton supplied by Schuster to the police, and that the City of New York owes a special duty under the circumstances alleged to protect persons who have thus co-operated in law enforcement. It is alleged that the city failed to exercise reasonable care in supplying Schuster with police protection upon demand, that Schuster's death was due to negligence of the city in recklessly exposing him to danger, in advising him that the threats upon his life were not seriously made, in failing to supply him with a bodyguard and in heedlessly imparting to him a false impression of safety and lack of danger. The action is not based on any absolute liability claimed to exist on the part of the city, but upon its alleged failure to use ordinary or reasonable care for his security.

    12

    [5 N.Y.2d 80] This being a motion addressed to the sufficiency in law of the complaint, the objection taken by the city may be dismissed at once that [180 N.Y.S.2d 269] plaintiff will be unable to prove that Schuster's death was the result of his having informed upon Sutton. It is a sufficient answer to that objection that the complaint alleges that Schuster's death did result from the negligence of the city previously stated. No more needs to be alleged in a pleading (Sandy v. Wicks, 256 App.Div. 1007, 11 N.Y.S.2d 110). It would be premature to hold now that plaintiff will be unable to prove this allegation at the trial for the reason that no individual has been indicted thus far for Schuster's murder. Plaintiff is entitled to a day in court upon this issue, which should not be prejudged in advance of trial. Perhaps by the time of the trial the identity [154 N.E.2d 537] of Schuster's murderer will have become known and the cause of his act be further clarified. It might even be held, without identification of Schuster's assailant, that the probability is so great of his having been shot by reason of his disclosures resulting in Sutton's capture, that a question of fact would be created on this issue. Questions such as that should be reserved for a trial, and cannot be disposed of by a motion to test the legal sufficiency of the complaint on which all of the allegations of fact must be assumed to be true.

    13

    The single issue now presented is whether a municipality is under any duty to exercise reasonable care for the protection of a person in Schuster's situation. Predictions of dire financial consequences to municipalities are waved in our faces if Schuster's estate is allowed to recover for his death. An array of authorities is cited on the proposition that there is no liability to the general public from failure of police or fire protection (Murrain v. Wilson Line, 270 App.Div. 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; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896, 62 A.L.R. 1199; Rocco v. City of New York, 282 App.Div. 1012, 126 N.Y.S.2d 198). One might think that the floodgates of liability have been opened in negligence and compensation cases against municipalities and other defendants where the liability is less clear than it is under the allegations of this complaint (cf. 31 Texas L.Rev. 630). In our view the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, [5 N.Y.2d 81] once it reasonably appears that they are in danger due to their collaboration. If it were otherwise, it might well become difficult to convince the citizen to aid and co-operate with the law enforcement officers (see Note, 58 W.Va.L.Rev. 308). To uphold such a liability does not mean that municipalities are called upon to answer in damages for every loss caused by outlaws or by fire. Such a duty to Schuster bespeaks no obligation enforcible in the courts to exercise the police powers of government for the protection [180 N.Y.S.2d 270] of every member of the general public. Nevertheless, where persons actually have aided in the apprehension or prosecution of enemies of society under the criminal law, a reciprocal duty arises on the part of society to use reasonable care for their police protection, at least where reasonably demanded or sought. Such a duty would be performed by the regular organs of government, in this instance, by the City of New York. The duty of everyone to aid in the enforcement of the law, which is as old as history, begets an answering duty on the part of government, under the circumstances of contemporary life, reasonably to protect those who have come to its assistance in this manner.

    14

    Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another (Wilkes v. City of New York, 308 N.Y. 726, 124 N.E.2d 338); to a taxicab driver shot by a passenger negligently placed in his cab by policemen (Lubelfeld v. City of New York, 4 N.Y.2d 455, 176 N.Y.S.2d 302); to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow (Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872); to the estate of a man negligently shot by a policeman for making a disturbance while intoxicated (Flamer v. City of Yonkers, 309 N.Y. 114, 127 N.E.2d 838); to the estate of a man arrested for public intoxication who died from cerebral hemorrhage in consequence of failure of the police to procure medical aid (O'Grady v. City of Fulton, 4 N.Y.2d 717, 171 N.Y.S.2d 108); to a wife shot by her husband to whom the police had negligently returned a pistol (Benway v. City of Watertown, 1 A.D.2d 465, 151 N.Y.S.2d 485); and to a bystander injured while directing traffic at the instance of a [154 N.E.2d 538] police officer (Adamo v. P. G. Motor Freight, 4 A.D.2d 758, 164 N.Y.S.2d 874). In McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419 a city was held liable for negligently having omitted to discharge a police [5 N.Y.2d 82] officer by whom plaintiff's intestate was shot. In Meistinsky v. City of New York, 309 N.Y. 998, 132 N.E.2d 900, the estate of a hold-up victim recovered who had been killed by an untrained officer's bullets. Negligence of the city was found in its omission to use reasonable care in training the police officer so that he could shoot straight and hit the criminal instead of his victim. None of these actions could have been brought until after the waiver of governmental immunity by section 12-a (now § 8) of the Court of Claims Act (Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364), but in each of them liability arose from negligence of a city in the exercise of the police power, and in at least two of them the negligence consisted in nonfeasance rather than in misfeasance (McCrink v. City of New York, supra; Meistinsky v. City of New York, supra).

    15

    [180 N.Y.S.2d 271] That distinction at best furnishes an incomplete formula, as the opinion of the court by Chief Judge Cardozo says in Moch Co. v. Rensselaer Water Co. (supra, 247 N.Y. at page 167, 159 N.E. at page 898). The opinion in the Moch case states: 'If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward. Bohlen, Studies in the Law of Torts, p. 87.'

    16

    In a situation like the present, government is not merely passive; it is active in calling upon persons 'in possession of any information regarding the whereabouts of' Sutton, quoting from the FBI flyer, to communicate such information in aid of law enforcement. Where that has happened, as here, or where the public authorities have made active use of a private citizen in some other capacity in the arrest or prosecution of a criminal, it would be a misuse of language to say that the law enforcement authorities are merely passive. They are active in calling upon the citizen for help, and in utilizing his help when it is rendered. They have gone forward to such a stage, paraphrasing the opinion in the Moch case (supra), that inaction in furnishing police protection to such persons would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury. Under such circumstances, we there said 'there exists a relation out of which arises a duty to go forward'. Such a relationship [5 N.Y.2d 83] existed here. The duty of Schuster to aid in law enforcement by informing the police of the whereabouts of Sutton is implied by the decision in Babington v. Yellow Taxi Corp., 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354. For present purposes it matters little whether this duty be described as legal or moral (People ex rel. Central Trust Co. v. Prendergast, 202 N.Y. 188, 197, 199-200, 95 N.E. 715, 718-719).

    17

    The reciprocal governmental duty to take reasonable measures to assure protection, to be sure, did not develop into enforcible legal liability until government waived its immunity from suit by the adoption of section 12-a (now § 8) of the Court of Claims Act in 1929, nor was the effect of such waiver fully understood until the decision in 1945 of Bernardine v. City of New York (supra). This waiver of governmental immunity removed the bar that previously prevented actions based on negligence of the police and made possible recoveries in the cases which have been cited. In one sense all of those causes of action grew out of the waiver of governmental immunity. But they were not created by waiver of governmental immunity, but by the common law, which

    18

    'is the legal embodiment of practical sense. It is a comprehensive enumeration of principles sufficiently elastic to meet the social development of the people. Its guiding star [180 N.Y.S.2d 272] has always been the rule of right and wrong, and [154 N.E.2d 539] in this country its principles demonstrate that there is in fact, as well as in theory, a remedy for all wrongs. The capacity of common law for growth and adaptation to new conditions is one of its most admirable features.' 11 Am.Jur., Common Law, § 2, pp. 154-155.

    19

    While governmental immunity remained in effect, this type of court action remained in abeyance. It remained in abeyance not on account of absence of duty on the part of a municipality to the injured or deceased person, but for the reason that where the factual basis of the claim was involved in the performance of a governmental function (such as police duty), the State had not permitted itself or its political subdivisions or municipal corporations to be sued. Where the immunity was removed, this bar no longer stood against the enforcement of civil liability arising from breach of a duty that existed before, but which could not be enforced until the immunity was waived.

    20

    [5 N.Y.2d 84] Even before the removal of governmental immunity, the Supreme Court of the United States had occasion to declare the duty of government toward a private citizen who reports a violation of law to the law enforcement authorities. The case of In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080, concerned the prosecution of persons who by concerted action conspired to prevent a private citizen from informing against a criminal. Quoting from its opinion in Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 157, 28 L.Ed. 274, the United States Supreme Court said in the Quarles case that it is the duty of government to see that a private citizen may exercise freely the right to notify the enforcement authorities of law violations,

    21

    'and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself that its service shall be free from the adverse influence of force and fraud practiced on its agents'.

    22

    The Quarles case (supra) envisages a civic duty as well as a right to inform, and contemplates that the informant shall be protected on account of doing so. Although not employed as a sleuth, such a person comes into the relationship of the government's 'agent'.

    23

    Such a duty on the part of government to persons aiding in law enforcement is recognized by section 1848 of the Penal Law, Consol.Laws, c. 40. That section creates an absolute liability against municipal corporations for damages arising from the personal injury or death of persons injured or killed while aiding policemen at their direction in making arrests. The existence of some duty on the part of the private citizen to assist in law enforcement is so plain that this statute makes it a misdemeanor to refuse to aid a police officer upon his command. This [180 N.Y.S.2d 273] statute goes farther in some respects than the cause of action alleged in the instant complaint, in that it does not rest the liability of the municipality upon its negligence but imposes liability whenever such a person is injured or killed while aiding an officer in making an arrest. It is true that Schuster's case does not fall within the coverage of this statute, inasmuch as he was not shot while Sutton was being arrested but three weeks later. He [5 N.Y.2d 85] was commanded in a certain sense to assist in Sutton's apprehension, in view of the widely published notices calling upon all private citizens to report Sutton's whereabouts to the public authorities. If the case fell within this statute, negligence would not have to be established against the City of New York in failing to supply police protection to Schuster, or in advising him that such protection was not necessary; the city would have had to pay to his estate upon merely showing that he had been called upon to aid in Sutton's arrest and had been killed while doing so. This statute does not measure the entire length and breadth of the [154 N.E.2d 540] city's liability for negligence of the police, as the cases cited earlier in this opinion show. The existence of section 1848 of the Penal Law does not defeat plaintiff's common-law cause of action. On the contrary, it reflects a public policy that municipalities shall respond in damages to private citizens or their estates who have been injured and killed as a result of aiding in law enforcement. This statute contains no language barring plaintiff's common-law remedy. The rule is that 'A statute in the affirmative, without any negative expressed or implied, takes away no preexisting rights or remedies; as a general rule, it operates merely to furnish an additional remedy for the enforcement of a right' (McKinney's Cons.Laws of N. Y., Book 1, Statutes, § 34). This commentary continues: 'The affirmative statute is merely declaratory and does not repeal the common law relating to the subject; on the contrary, the two rules coexist. In other words, where a remedy existed at common law for the wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or a summary or more efficient remedy for the party aggrieved, but does not in terms or by necessary implication deprive him of the remedy which existed at common law, the statutory remedy is considered as merely cumulative, and the party injured may resort to either at his election' (citing Tremain v. Richardson, 68 N.Y. 617, and other cases).

    24

    Section 1848 of the Penal Law, while it recognizes a duty on the part of municipal corporations to persons who are killed or injured from aiding in the apprehension of criminals, neither expressly nor by implication repeals the common-law remedy. If does not purport to cover the same ground as the cause of action alleged in the complaint, and thereby to preclude the [5 N.Y.2d 86] maintenance of a common-law action. The statute goes [180 N.Y.S.2d 274] farther in some respects, by making liability absolute to those who come within its terms. The instant action is based on negligence. It is grounded on negligence of the police in the failure to exercise reasonable care for the protection of Schuster after he had received threatening letters as a result of its becoming publicly known that he had been instrumental in the arrest of Sutton. In contrast, the statutory cause of action lies in cases to which it applies even if the police and other public authorities have taken the utmost care. This in itself indicates that no implied exclusion of a common-law remedy for negligence could have been intended, inasmuch as the statute has nothing to do with negligence. The statute and the common-law right of action are different in scope. What is important is that the governmental policy behind the statute indicates care and solicitude for the private citizen who co-operates with the public authorities in the arrest and prosecution of criminals. That is the bearing which section 1848 of the Penal Law has on this case. Statutes have played their part in the formation of the common law, and, like court decisions that are not strictly analogous, sometimes point the way into other territory when the animating principle is used as a guide. Michalowski v. Ey, 4 N.Y.2d 277, 282, 174 N.Y.S.2d 6, 10, citing Pound, Common Law and Legislation, 21 Harv.L.Rev. 383, 385-386; Stone, The Common Law in the United States, 50 Harv.L.Rev. 4, 13. Here Schuster's case is within the spirit if not the coverage of section 1848 of the Penal Law. The remedy supplied by that section is not available to plaintiff, but the care and solicitude which it manifests toward those who aid in law enforcement dispels any inference that the public policy of the State is the other way. This section contains nothing which implies that the Legislature intended to nullify plaintiff's common-law remedy for negligence under the circumstances described.

    25

    The judgment appealed from should be reversed, and defendant's motion to dismiss the complaint should be denied, with costs in all courts.

    26
    [154 N.E.2d 541] McNALLY, Judge (concurring).
    27

    I concur in the opinion of VAN VOORHIS, J., for the reasons stated therein and on an additional ground. The assumption by the respondent of the partial protection of plaintiff's intestate under the circumstances [5 N.Y.2d 87] of this case carried with it the obligation not to terminate such protection if in the exercise of reasonable care it was apparent that its acceptance of the information furnished and services rendered by plaintiff's intestate and its public acknowledgment of his role, confirmed by the assumption of his partial protection by the respondent, either enlarged or prolonged the risk of bodily harm to the plaintiff's intestate. It is now clear that sovereign immunity is unavailable to the respondent in respect of active negligence even in regard to or in the discharge of [180 N.Y.S.2d 275] a governmental function. It is equally clear that it is immaterial that the respondent's duty in regard to preserving public peace is a governmental function when in the negligent discharge of that duty personal injuries result. Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364; Murrain v. Wilson Line, 270 App.Div. 372, 59 N.Y.S.2d 750, affirmed 296 N.Y. 845, 72 N.E.2d 29. The voluntary assumption of plaintiff's intestate's partial protection carried with it the obligation to exercise reasonable prudence in regard to the foreseeable risks engendered thereby. 'It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all'. Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425; Marks v. Nambil Realty Co., 245 N.Y. 256, 258, 157 N.E. 129, 130.

    28

    At this time every favorable inference is required to be indulged to sustain the complaint. As presently drawn it enables proof that Willie Sutton was a notorious and dangerous criminal at large associated with persons having a reputation for violence and likely to seek revenge against any person instrumental in his identification and apprehension; that plaintiff's intestate, a law abiding citizen with no reason to anticipate harm from any source, conveyed information to the respondent resulting in the apprehension of Willie Sutton; that the role of plaintiff's intestate was publicized with the knowledge and co-operation of the respondent and publicly confirmed by the respondent's assumption of partial protection of plaintiff's intestate. There was thus set in motion a series of events which it may be reasonably found had implications of danger to the person of plaintiff's intestate which were reasonably foreseeable and contributed to in some measure by respondent's conduct. O'Neill v. City of Port Jervis, 253 N.Y. 423, [5 N.Y.2d 88] 433, 171 N.E. 694, 697. Moreover, the seemingly difficult and dangerous position in which plaintiff's intestate was placed was unnecessarily enhanced by representations on the part of various members of the Police Department that he was not endangered. These representations are akin to that made by the surgeon to the father of the infant plaintiff in Meiselman v. Crown Heights Hospital (285 N.Y. 389, 34 N.E.2d 367, 369,) where the surgeon said 'that the boy did not need further hospitalization' and where this court held 285 N.Y. at page 395, 34 N.E.2d at page 370: 'At least, the jury might have found that the defendants had prematurely and willfully discharged themselves from attention to the case while the patient was desperately ill and before he was cured without giving information or advice as to subsequent treatment or the desperate and dangerous condition and character of the disease'. Here a jury might find that the defendant prematurely withdrew partial protection of plaintiff's intestate while he was in a state [180 N.Y.S.2d 276] of danger brought about in some measure by respondent's acts. See, also, Carpenter v. Blake, 75 N.Y. 12, 22, 23. Whether the exposure of plaintiff's intestate was enhanced by the respondent and whether it subsisted at the time the partial protection was suspended by the respondent present factual issues. 'The query always is whether the putative [154 N.E.2d 542] wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good'. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168, 159 N.E. 896, 898, 62 A.L.R. 1199.

    29

    It is to be noted that the plaintiff was shot and killed by an unknown person or persons on March 8, 1952, a period of 19 days after his identification of Willie Sutton, and it cannot be said at this time that the death of plaintiff's intestate is too remote in respect of the time that he informed the respondent. The death of plaintiff's intestate may have been caused by circumstances unrelated to respondent's conduct with regard to plaintiff's intestate. At this time we need only decide that the evidence admissible under the allegations of this complaint may support a finding with reasonable certainty that the death and injuries of plaintiff's intestate were proximately caused by respondent's conduct; the fact that other proximate causes may be established does not preclude plaintiff's reliance on those attributable to the respondent. Dunham v. Village of [5 N.Y.2d 89] Canisteo, 303 N.Y. 498, 104 N.E.2d 872; Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828, 829; Stubbs v. City of Rochester, 226 N.Y. 516, 526, 124 N.E. 137, 140, 5 A.L.R. 1396. The presence of several bases of proximate cause merely serves to emphasize that a factual question is present. Carlock v. Westchester Lighting Co., 268 N.Y. 345, 349, 197 N.E. 306, 308.

    30

    The judgment appealed from should be reversed and defendant's motion to dismiss the complaint should be denied, with costs in all courts.

    31
    CONWAY, Chief Judge (dissenting).
    32

    This action was instituted by plaintiff, as administrator of the estate of his son, Arnold L. Schuster, to recover damages against the City of New York for the son's alleged wrongful death and conscious pain and suffering. Young Schuster was shot and killed following the arrest of a notorious criminal, Willie Sutton. It was through Schuster's recognition of Sutton that the police became aware of the latter's whereabouts and were able to apprehend him. The killing took place on March 8, 1952 while Schuster was walking in the vicinity of 45th Street and 9th Avenue, Brooklyn. The assassin is still at large and his identity remains unknown.

    33

    Four causes of action are set forth in the complaint. The first cause of action for wrongful death is predicated on averments that the [180 N.Y.S.2d 277] intestate was killed because the police of the City of New York, with knowledge that Sutton was an unusually dangerous character who associated with an unusually dangerous group of persons, and with knowledge that threats had been made against the intestate's person and life following the arrest of Sutton, failed, neglected and even refused on demand to furnish him the protection called for by the situation. The second cause of action is derived from the same factual presentation as the first, but seeks a recovery of damages for pain and suffering sustained by plaintiff's intestate in the interval between the time he was shot and the time he died. The third cause of action for wrongful death is based upon allegations that the police falsely represented to the intestate that he was not in danger because of the threats, as a consequence of which he was induced to go on to a public highway where he was shot. The fourth cause of action derives from the same factual recitation as the third, but seeks a recovery of [5 N.Y.2d 90] damages for pain and suffering sustained by plaintiff's intestate prior to his death.

    34

    The sole issue to be determined by this court is whether the complaint was properly dismissed on motion made under rule 106 of the Rules of Civil Practice for failure to state facts sufficient to constitute a cause of action.

    35

    It is well settled that the State's waiver of sovereign immunity by section 8 of the Court of Claims Act has rendered the defendant [154 N.E.2d 543] municipality answerable, equally with individuals and private corporations, for the wrongs of its officers and employees (Steitz v. City of Beacon, 295 N.Y. 51, 54, 64 N.E.2d 704, 705, 163 A.L.R. 342). The waiver of immunity has, however, been accompanied by a provision that liability be 'determined in accordance with the same rules of law as (are) applied to actions in the supreme court against individuals or corporations * * *.' Court of Claims Act, § 8. Accordingly, for plaintiff to recover against the city it must be established that there was a duty running from the city to plaintiff's intestate and that such duty was violated.

    36

    Section 435 of the New York City Charter enumerates the duties of the Police Department and force in these words: 'The police department and force shall have the power and it shall be their duty to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks and places; protect the rights of persons and property, guard the public health, preserve order at elections and all public meetings and assemblages; subject to the provisions of law and the rules and regulations of the commissioner of traffic, regulate, direct, control [180 N.Y.S.2d 278] and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; remove all nuisances in the public streets, parks and places; arrest all street mendicants and beggars; provide proper police attendance at fires; inspect and observe all places of public amusement, all places of business having excise or other licenses to carry on any business; enforce and prevent the violation of all laws and ordinances in force in the city; and for these purposes to arrest all persons guilty of [5 N.Y.2d 91] violating any law or ordinance for the suppression or punishment of crimes and offenses.'

    37

    Clearly, the foregoing statute places the police force of the City of New York under a broad duty to protect the general public from crime, including homicide. However, for plaintiff to succeed in this suit more must be shown. That is, it must be demonstrated that the duty imposed upon the police force to protect the general public inures to a member of the public individually for the city cannot be held liable to plaintiff unless the police force owed his intestate a duty of protection against homicide. It will be remembered that this court has held that a statutory duty owing to the public as a whole does not run to the individual members thereof 'in the absence of language clearly designed to have that effect'. Steitz v. City of Beacon, 295 N.Y. 51, 54, 55, 64 N.E.2d 704, 705, supra. In the present case we cannot find any language clearly designed to impose upon the city the crushing burden of an obligation such as that which plaintiff claims exists in favor of his intestate. Special Term has aptly noted: (207 Misc. 1102, 121 N.Y.S.2d 741) 'The right of the public generally to be safeguarded against burglaries does not give a cause of action to the individual whose home has been burglarized.' Similarly, the right of the public generally to be safeguarded against murder does not give a cause of action to the next of kin of one who has been murdered. The language of the Charter provision here, like the language of the Charter provision in the Steitz case (supra, 295 at pages 55-56, 64 N.E.2d at page 706) 'connotes nothing more than the creation of departments of municipal government, the grant of essential powers of government and directions as to their exercise.'

    38

    'Such enactments do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyment of rights and privileges to which they are entitled only as members of the public. Neglect in the performance of such requirements creates no civil liability to individuals. Restatement of Torts, § 288; Moch Co. v. [154 N.E.2d 544] Rensselaer Water Co., supra; Taylor v. Lake Shore & Mich. S. R. Co., 45 Mich. 74, 7 N.W. 728; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767, 101 N.W. 995, 68 L.R.A. 425; cf. City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937, 10 [180 N.Y.S.2d 279] L.R.A. 393; and Troeger v. Prudential Insurance Co. of America, 154 Misc. 537, 277 N.Y.S. 423; which cites Restatement of Torts, § 288.' Steitz v. City of Beacon, 295 N.Y. 51, 55-56, 64 N.E.2d 704, 705-706, 163 A.L.R. 342, supra.

    39

    [5 N.Y.2d 92] The majority opinion is premised on the idea that 'the public (acting in this instance through the City of New York) owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration.' Apparently the majority proposes to leave it to a jury to determine (1) when it reasonably appears that the 'collaborator' is in danger and (2) whether the public has exercised reasonable care for the protection of such person. We cannot agree that the public is under any such special duty.

    40

    Certainly, no statute imposes such a special duty on the public and we are unable to find any warrant in common law for the imposition of such a special duty. The majority holds that such duty is owed to the individual since there is imposed upon the individual a duty to aid in the enforcement of the law. We disagree with this sweeping premise and, so, reject the proposition as unsound. Our State does not put its residents under any duty to take steps either to prevent the commission of crime or to bring the offender to justice, after its commission. The common-law crime of misprision of felony, which made it criminal conduct not to prevent a felony from being committed or not to bring the felon to justice, has not been carried into our Penal Law. Reward offers, for the capture of a convicted criminal or an accused, are not made payable to those (such as police officers) legally obligated to perform the act called for in the offer. However, they are payable to private citizens for the very reason that such persons are not legally bound to aid in the apprehension of wanted men. As Corpus Juris Secundum states (77 C.J.S. Rewards § 34): 'The general rule is that when a reward is offered to the public, as most rewards are, it may be accepted by anyone who, under its terms and conditions, performs the services required, as, for example * * * the apprehension of an offender * * *. (A)s an exception to the general rule, persons whose duty it already is to do that for the doing of which the reward is offered are not entitled to claim the reward.' The offer of a reward, rather than the imposition of a legal duty, has been the modern means employed to induce private citizens to aid the police in the enforcement of the law. The thought behind rewards is that the offer of [5 N.Y.2d 93] a monetary consideration will activate citizens possessed of the desired information, but fearful of disclosing it, into assuming such risks as may flow from their co-operation with the authorities. Thus, the reward is the quid pro quo not only for the information disclosed but for the assumption of the [180 N.Y.S.2d 280] risks of disclosure as well. The public is not put under an additional special duty of protecting the recipient of the reward.

    41

    We recognize, of course, that countless numbers of persons willingly identify those accused of crime, without thought of monetary reward. Such persons are undoubtedly aware of the fact that they, themselves, are the beneficiaries of their own acts, for every resident of a community is benefited by the apprehension, conviction and incarceration of lawless persons at large in the community. One thing is certain whether the citizen or resident who co-operates with the police in identifying a criminal does so out of a selfish motive or out of an altruistic motive, in so doing he is not discharging a duty imposed upon him by law. Thus falls the premise of the majority to the effect that the duty of everyone to aid in the enforcement of the law begets an answering duty on the part of government reasonably [154 N.E.2d 545] to protect those who come to its assistance. It is true that under certain circumstances a person is placed under a legal duty to aid the law enforcement authorities, i. e., where commanded by an officer to aid him in arresting any person, or in retaking any person who has escaped from legal custody, or in executing any legal process (Penal Law, § 1848). Having imposed such a duty on individuals, the Legislature has imposed upon the State a reciprocal duty to pay damages to any individual injured as a consequence of obeying the command or, if death results, to pay damages to the personal representative of the deceased. Section 1848 of the Penal Law is not applicable here for the reasons that (1) the intestate's acts in connection with the arrest of Sutton were not performed pursuant to the command of an officer but were voluntary in nature and (2) the intestate's death did not arise out of and within the course of the arrest within the meaning of section 1848 of the Penal Law his death occurred several weeks after the arrest had been made.

    42

    As we have said, the risk attendant upon co-operation with the law enforcement officials is assumed daily in our criminal [5 N.Y.2d 94] courts by countless numbers of persons. Concededly, some of these persons do so in obedience to a subpoena and, so, are acting in pursuance of a legal duty. However that may be, and even assuming that the citizenry is under a duty to aid law enforcement officials, to hold that the countless numbers of persons who co-operate with law enforcement officers are entitled to special police protection would be to impose upon the municipality an unreasonable burden a burden which would incapacitate the entire existing police force and leave the general public without police protection.

    43

    Duties have their genesis in concepts of reasonableness. It would be unreasonable, if not impossible, for a community to support a police force of the dimensions required to discharge such a duty. At least [180 N.Y.S.2d 281] three policemen working around the clock would be required for each witness in each such case. Reasonableness demands that the need for special police protection be left to the absolute discretion of the Police Department. It is a well-known fact that few witnesses or informers are murdered or assaulted by reason of their having assisted in the enforcement of the law. This is some evidence of the fact that, by and large, the Police Department exercises sound discretion in these matters. Now, it may be argued that since there are few deaths or assaults the city can well afford to pay damages to the one assaulted or to the estate of the one killed. That, however, is not the question. The question is whether the duty of furnishing special police protection is to be imposed upon the public. If such duty exists special protection can properly be demanded by every witness who identifies a criminal, for there is a likelihood that every criminal will have associates of a violent bent. If such special duty exists the police cannot refuse to give it. Such a situation should not be brought into existence. The need for special protection must be left to the absolute discretion of the police force. A mere mistake in judgment by the department should not be the basis for the imposition of liability upon the municipality else, as we have noted, to discharge its duty and at the same time to avoid liability, the police department will find itself faced with the impossible task of supplying all witnesses and all informers with special protection until that point of time is reached when it becomes a virtual certainty that no harm will befall the [5 N.Y.2d 95] particular witness or informer. To withdraw the protection at any point short of this will, under the rule now being announced by the majority, subject the municipality to possible liability at the hands of a jury. The truth of this becomes evident when it is realized that in the present case the majority is content to let a jury determine whether to return a judgment against the city even though (a) there is not proof available as to who shot and killed Schuster and (b) there is no proof available as to whether the threats made to Schuster were made by his assassin or simply by a crank.

    44

    [154 N.E.2d 546] It is further suggested that the city may properly be held liable for having prematurely withdrawn partial protection of Schuster. Support for this holding is said to be found in the rule that 'one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all * * * (Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 23 A.L.R. 1425).' We believe that the quoted rule cannot reasonably be said to have application to a situation such as that presented here. Under that rule one who assumes to act, where he is not legally bound to act, is required to act with such care that he not injure, or aggravate an existing injury, assuming that there be one, of the one to whom he offers aid. Assistance given which in no [180 N.Y.S.2d 282] way harms the recipient thereof is not actionable. In affording Schuster partial special protection the police did not bring about his death. Likewise in withdrawing the partial special protection the police did not bring about Schuster's death. In withdrawing the special proteciton gratuitously given, the police left Schuster in precisely the same position as he was in before the partial special protection was given. The withdrawal did not aggravate or alter the situation in the slightest. Schuster's death was caused solely by the act of an unknown assailant. The public at no time owed him special protection against such assailant. They gratuitously gave him partial special protection but it cannot fairly be said that such partial special protection, or the withdrawal thereof, increased the danger of injury to Schuster or in any way contributed to his death.

    45

    Nor may the city be cast in damages upon the ground that statements and assurances given by certain members of the police force lulled plaintiff's intestate into a relaxation of vigilance [5 N.Y.2d 96] and a false sense of security. Briefly, the allegations are that the police falsely represented that the intestate was not endangered by reason of 'threatening and menacing telephone calls, anonymous letters, missives, notes and messages' and that the police falsely represented that the telephone calls, etc., were the work of 'crackpots' and 'cranks' and were 'child's stuff'. It is clear that the statements made by the police were expressions of opinion, not expressions of fact upon which the intestate had a right to rely. They could hardly have been more than expressions of opinion in view of the fact that the identity of those who threatened the intestate was unknown. No fraud action may be grounded on a mere expression of opinion.

    46

    In sum, the police force of the City of New York is under a broad duty to protect the general public from every form of crime. However, this duty does not inure to the benefit of individual members of the public.

    47

    The judgment should be affirmed, with costs.

    48
    DESMOND, Judge (dissenting).
    49

    I vote for affirmance on the grounds stated by the Chief Judge and on an additional ground. The allegations of the complaint and the concessions of counsel make it entirely clear that, six years after the event, plaintiff has no knowledge or information whatever as to the identity or motives of his son's assailant or assailants. Thus, the suit is based on what must be a mere guess (or choice among mere possibilities Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828, 829) that Arnold Schuster was killed because he informed on Sutton. It is evident that there is a complete absence not only of knowledge but even of information that the killing was related to Arnold Schuster's activity as an informer.

    50
    [180 N.Y.S.2d 283] FROESSEL, Judge (dissenting).
    51

    I concur with Chief Judge CONWAY and Judge DESMOND for affirmance. Without the support of a statute or a single applicable judicial precedent, the majority is about to announce a new rule of law, namely, that every city, town and village of this State may now be held in heavy damages if [154 N.E.2d 547] their police departments fail to give such protection to an informer as a jury may later determine was adequate. And this, notwithstanding the fact that the Legislature of this State, which created these governmental agencies, has already [5 N.Y.2d 97] manifested, by is enactment of section 1848 of the Penal Law, how far it has been willing to go in allowing compensation to persons aiding the police.

    52

    In the first place, we are here dealing with the legal sufficiency of a complaint, in which plaintiff seeks upwards of half a million dollars in damages from the City of New York. That complaint alleges, among other things, that the Police Department of the City of New York 'duly acknowledged and was instrumental in making known' to the press and the general public 'its acknowledgment and recognition' of Schuster's part in supplying information leading to Sutton's arrest. (Emphasis supplied.) Such 'acknowledgment' presupposes that the press and public were already aware of Schuster's role, and it is not alleged that the Police Department 'widely publicized' the fact, as the dissenting Justice below wrote, and violated 'its usual practice of concealing the identity of informers', as now claimed by appellant.

    53

    The complaint further sets forth that the Police Department knew that Sutton 'was an unusually dangerous character with an unusually dangerous group of associates', which associates had 'a special reputation for violence', and that Schuster and his family were threatened; that the Police Department initially undertook a limited and partial protection of the place of business and home of Schuster and his family, but failed to continue such protection. Nowhere is it alleged that the police undertook protection elsewhere. The complaint also alleges that Schuster was 'allowed to be shot with a lethal weapon', sustaining injuries resulting in his death, on a public street at night; it is not alleged how near or how far from his home.

    54

    Sutton had already been arrested at the time of the shooting, so I suppose we are to guess that the assailant was an unknown, undescribed and unidentified associate of his. There is not, however, a single factual allegation in the complaint as to who did the threatening or who did the shooting, and mere conclusory allegations that Schuster's death was due to defendant's negligence will not fill this hiatus.

    55

    Of course, we must assume the factual allegations of a complaint to be true, but not unpleaded facts. Nor may we assume as true its conclusions [180 N.Y.S.2d 284] of law. 'A complaint must state facts. General allegations of wrongdoing based upon undisclosed facts [5 N.Y.2d 98] do not state a cause of action' (Gerdes v. Reynolds, 281 N.Y. 180, 183-184, 22 N.E.2d 331, 332-333; see, also, Kalmanash v. Smith, 291 N.Y. 142, 153-154, 51 N.E.2d 681, 686).

    56

    Assuming arguendo that defendant owed Schuster a legal duty of protection and that that duty was breached, the complaint still fails to allege a cause of action in negligence because it is devoid of a factual allegation that the breach of the duty was a cause in fact of Schuster's death. There is no liability in tort unless the defendant's wrongful conduct is a cause in fact of plaintiff's injury or death. Under plaintiff's theory of recovery, a duty to give his intestate protection arose because the criminal whose apprehension was aided by decedent had 'an unusually dangerous group of associates'. Yet, as noted, there is no factual allegation in the complaint that decedent's death was caused by one of these 'associates' or that they threatened him. As Judge Cardozo pointed out in Martin v. Herzog (228 N.Y. 164, 170, 126 N.E. 814, 816),

    57

    'We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury.' See, also, Cole v. Swagler, 308 N.Y. 325, 331, 125 N.E.2d 592, 595.

    58

    Negligence presupposes the existence of a legal duty, and, as Chief Judge CONWAY outlines in his opinion, defendant did not fail in any legal duty. We have recently [154 N.E.2d 548] said (Williams v. State of New York, 308 N.Y. 548, 557, 127 N.E.2d 545, 550):

    59

    'Without duty, there can be no breach of duty, and without breach of duty there can be no liability.'

    60

    Appellant can point to no statute, and his counsel concedes he has been unable to find any precedent, creating 'a duty, the breach of which is actionable in tort, to provide protection to an informer'.

    61

    In Steitz v. City of Beacon, 295 N.Y. 51, 55, 64 N.E.2d 704, 706, 163 A.L.R. 342, decided less than six months after Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364, we held that while indeed there was a public duty to maintain a fire department, 'that was all, and there was no suggestion' that damages could be recovered by an individual against the city for omission to keep its water pipes in repair. In Murrain v. Wilson Line, 270 App.Div. 372, 59 N.Y.S.2d 750, the Appellate Division held that a municipality is not liable to an individual [5 N.Y.2d 99] for its failure to exercise a governmental function, namely, to provide adequate police protection, and we unanimously affirmed 296 N.Y. 845, 72 N.E.2d 29, less than two years after our decision in the [180 N.Y.S.2d 285] Bernardine case. In Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167-169, 159 N.E. 896, 898-899, 62 A.L.R. 1199, Judge Cardozo stated that the failure 'to furnish an adequate supply of water is at most the denial of a benefit. It is not the commission of a wrong', and thereby distinguished that case from the negligence of the surgeon, the engineer and the manufacturer. See, also, Landby v. New York N. H. & H. R. Co., 199 Misc. 73, 105 N.Y.S.2d 836, affirmed 278 App.Div. 965, 105 N.Y.S.2d 839, motion for leave to appeal denied 303 N.Y. 1014, 102 N.E.2d 840. Thus it was settled in this State that a municipality is not liable for inadequate police or fire protection.

    62

    Matter of Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080, is clearly inapplicable here. That case involved the punishment under Federal statute of individuals guilty of an assault upon a person who had informed against them. Nor are the other cases relied on by the majority apt here. All of them dealt with entirely different factual patterns, and in each one of them the negligence consisted of some act of misfeasance, including McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419, where the Police Commissioner persistently retained a patrolman who was clearly a known alcoholic and who shot and killed plaintiff's intestate and wounded another; and Meistinsky v. City of New York, 309 N.Y. 998, 132 N.E.2d 900, where the Police Commissioner appointed a policeman who had not received sufficient and proper training in the use of firearms and who subsequently killed another. In both of the latter cases, the police officers were a menace to the public at large, and third persons were killed as a result of negligent acts of commission. None of the cases relied on suggests liability for mere failure to provide police protection under the circumstances here claimed to be present.

    63

    Judge VAN VOORHIS states that Schuster owed the duty of informing the police of the whereabouts of Sutton, and that 'it matters little whether this duty be described as legal or moral' (citing People ex rel. Central Trust Co. v. Prendergast, 202 N.Y. 188, 199-200, 95 N.E. 715, 718-719, where a statute was involved). He then speaks of the 'reciprocal governmental duty to take * * * measures to assure protection'. Are we to understand that it matters little whether the 'reciprocal governmental [5 N.Y.2d 100] duty' be described as legal or moral, and that liability may follow in either event?

    64

    Section 1848 of the Penal Law is clearly inapplicable. That section sets the limit to which the Legislature has been willing to go in establishing liability against municipal corporations to compensate individuals who aid the police. One can only conclude therefrom that the Legislature, as a matter of public policy, does not wish to extend liability to situations [180 N.Y.S.2d 286] not embraced within the statute, for as we said in the Steitz case [154 N.E.2d 549] supra, 295 N.Y. at page 55, 64 N.E.2d at page 706.

    65

    'An intention to impose upon the city the crushing burden of such an obligation (liability to individual citizens for inadequate fire protection) should not be imputed to the Legislature in the absence of language clearly designed to have that effect.'

    66

    Nevertheless, the majority would now rewrite the statute and extend its operation to informers.

    67

    Nor is there any validity to the claim that the voluntary assumption by the Police Department of the partial protection of plaintiff's intestate at his home and place of business carried with it the legal obligation not to terminate such protection. The complaint shows that Schuster was shot on the street, and not at his home or place of business, and it does not allege that the Police Department ever undertook to protect Schuster on the highways or at any other place, outside of his home and office. They did not have him in protective custody. Cases involving affirmative acts of wrongdoing, such as Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 23 A.L.R. 1425 (certifying to the wrong weight of a shipment), and Marks v. Nambil Realty Co., 245 N.Y. 256, 157 N.E. 129 (landlord making repairs negligently) have no application here.

    68

    As to the third and fourth causes of action, I agree with the Chief Judge and the courts below that the additional allegations as to the representations allegedly made by unnamed policemen were no more than expressions of their opinions, in no way binding on the city.

    69

    We are not deciding the question of the city's moral obligation to Schuster for the valuable information which he gave to the police. It may be here noted that our State Legislature [5 N.Y.2d 101] has provided (L.1937, Ex.Sess., ch. 929) in the Administrative Code of the City of New York (§ 434a-32.0, subd. (b)) that the Police Commissioner is authorized to offer rewards to informers, and the Board of Estimate shall make the necessary appropriation for such purpose. In section 1848 of the Penal Law the Legislature has made it mandatory in the situation there embraced. It has not legislated further.

    70

    The consequences of the decision about to be handed down may not be overlooked. The courts are constantly made cognizant of the not uncommon practice of threats made to informers and prospective witnesses, especially in criminal cases. Police commissioners, in order to guard against possible claims and lawsuits against the municipal corporations they serve, may now be required in all such cases to furnish costly protection by providing at least three police officers to each such person every single day. The police would have to guess at the length of time such protection should be afforded whether for days, months or even longer and whether a jury would deem sufficient such protection as was decided upon. The cost to the municipal corporation of such protection would be incalculable.

    71

    The foregoing considerations, the absence of any statute or judicial precedent in support of the majority opinion, our own previous decisions with respect to liability for inadequate police and fire protection, the legislative policy thus far declared, and the absence of necessary factual allegations in the complaint all lead me to the inescapable conclusion that no cause of action is stated here.

    72

    DYE and FULD, JJ., concur with VAN VOORHIS, J.

    73

    McNALLY[*] concurring in a separate opinion in which DYE, FULD and VAN VOORHIS, JJ., also concur.

    74

    CONWAY, C. J., and DESMOND and FROESSEL, JJ., dissent and vote to affirm [154 N.E.2d 550] each in a separate opinion in which the others concur.

    75

    BURKE, J., taking no part.

    76

    Judgment reversed, motion to dismiss complaint denied and matter remitted to Special Term for the entry of the essential order, with costs in all courts.

    77

    [*] Designated pursuant to section 5 of article VI of the State Constitution in place of BURKE, J., disqualified.

  • 3 Weiner v. Metro. Transit Authority--"The Unmanned Train Station"

    Should non-police, government agencies—such as transit authorities—have a duty to protect the individuals they service?

    Notes: Defendant transit authority was aware of a history of armed robberies and assaults at a particular subway station, many of which occurred during time periods where the station was unmanned by transit police or employees. The plaintiff suffered a knife wound when a robber slashed through the strap of her handbag. At the time of her robbery, no transit police or employees were scheduled to be present at the station.
    1
    448 N.Y.S.2d 141
    2
    55 N.Y.2d 175, 433 N.E.2d 124
    3
    Ann G. WEINER, Respondent,
    v.
    METROPOLITAN TRANSPORTATION AUTHORITY, Defendant, and New York City Transit Authority, Appellant.
    Henrietta SHERNOV, Appellant,
    v.
    NEW YORK CITY TRANSIT AUTHORITY, Respondent.
    4
    Court of Appeals of New York.
    5
    Feb. 18, 1982.
    6

    [448 N.Y.S.2d 142] Eugene Freidus, Richard K. Bernard, for appellant in the first above-entitled action and respondent in the second above-entitled action.

    7

    John A. Murray and Lawrence Heisler, Brooklyn, for appellant in the first above-entitled action.

    8

    Daniel Ross, New York City, for respondent in the first above-entitled action.

    9

    Harvey J. Michelman and Perry S. Reich, New York City, for appellant in the second above-entitled action.

    10
    OPINION OF THE COURT
    11
    MEYER, Judge.
    12

    The New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted. That a nongovernmental common carrier would be liable under the same factual circumstances is not determinative of the authority's liability. Its immunity from such liability rests upon the same considerations as does the immunity of a municipality or other governmental body from liability for failure to provide adequate police protection, for the duty if one were recognized would necessarily implicate the Transit Authority police. Accordingly, the order of the Appellate Division, First Department, 80 A.D.2d 514, 435 N.Y.S.2d 594, in the Weiner case should be reversed, and the order of the Appellate Division, Second Department, 79 A.D.2d 1021, 435 N.Y.S.2d 55, in the Shernov case should be affirmed, though on a rationale different from that of the Appellate Division.

    13

    In the Weiner case the authority[1] moved for summary judgment. The papers on the motion establish that plaintiff entered the 25th Street end of the 23rd Street station of the Eighth Avenue subway at about 12:15 [448 N.Y.S.2d 143] p. m. on December 4, 1973. There is a change booth at the 25th Street entrance but a sign at street level states that there is a clerk in the booth only between the hours of 2:55 p. m. and 7:30 p. m., and that anyone without a token must use the 23rd Street entrance at which a clerk is in attendance full time. Plaintiff proceeded from the street to the token booth level, paid her fare with a token and had begun to descend to the train level when she was accosted on the steps by a man who blocked her way. There was no one else on the stairway. The man slashed at her handbag with a knife, cutting through its strap, but at the same time cutting her wrist. Complaint reports of the transit police establish that during the period January 13 through October 23, 1973 13 separate incidents of robbery or assault occurred, 9 of them at the 25th Street end of the station when the token booth was closed and 8 of them at knifepoint.

    14

    Trial Term granted the authority's motion and dismissed the complaint. The Appellate Division, however, reversed as to the Transit Authority, holding that its knowledge of the prior incidents while the entrance was unmanned presented a triable issue of fact as to negligence. The Transit Authority appeals on a certified question.

    15

    The Shernov case involved an assault upon and attempted rape of plaintiff in the New Utrecht Avenue station of the Sea Beach line. It too included evidence of prior such assaults, some in the same station and some elsewhere on the line. The psychological impact on plaintiff was sufficiently great that the case did not come to trial until almost 16 years after the incident. A Civil Court jury awarded plaintiff a $50,000 verdict, which was, however, reversed by the Appellate Term on the ground that the Transit Authority had no legal duty to protect its passengers from crime. The Appellate Division disagreed with respect to duty, but nonetheless affirmed on the ground that plaintiff's evidence was insufficient to establish proximate cause. The appeal to us is on a question certified by the Appellate Division.

    16

    In each case the plaintiff argues that the Transit Authority is engaged in a proprietary function and subject to the same liability to protect its passengers from assault as is any common carrier (Green Bus Lines v. Ocean Acc. & Guar. Corp., 287 N.Y. 309, 312, 39 N.E.2d 251; see Gillespie v. Brooklyn Hgts. R. R. Co., 178 N.Y. 347, 70 N.E. 857; 1 N.Y. PJI2d 419) or as is the owner of real property who is aware of criminal acts that have occurred on his premises (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451). The Transit Authority on the other hand contends that it performs a governmental function and is not under any greater duty to provide police protection than is any other municipality (Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; Bass v. City of New York, 38 A.D.2d 407, 380 N.Y.S.2d 569, affd. 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154; see Garrett v. Town of Greece, 55 N.Y.2d 774, 447 N.Y.S.2d 246, 431 N.E.2d 971; Ann., 46 A.L.R.3d 1084), and, therefore, absent a special relationship[2] such as existed in Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 and Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534, cannot be held liable. The issue is one on which we have not passed (cf. Scalise v. City of New York, 3 N.Y.2d 951, 169 N.Y.S.2d 26, 146 N.E.2d 786), but on which, in addition to the two cases now under consideration, the lower courts have spoken a number of times (Bardavid v. New York City Tr. Auth., 82 A.D.2d 776, 440 N.Y.S.2d 648; Amoruso v. New York City Tr. Auth., 12 A.D.2d 11, 207 N.Y.S.2d 855; Biniewski v. i City of New York, 267 App.Div. 108, 44 N.Y.S.2d 543; Prinz v. City of New York, 98 Misc.2d 952, 415 N.Y.S.2d 200; Eisman v. Port Auth. Trans Hudson Corp., 96 Misc.2d 678, 409 N.Y.S.2d 578; see Moriarity v. New York City Tr. Auth., 11 A.D.2d 654, 201 N.Y.S.2d 600; Langer v. City of New York, 9 Misc.2d 1002, 171 N.Y.S.2d 390, affd. 8 A.D.2d 709, 185 N.Y.S.2d 751). We hold that there is no duty such as plaintiffs in these cases seek to enforce.

    17

    [448 N.Y.S.2d 144] The Legislature has declared in subdivision 2 of section 1202 of the Public Authorities Law that the authority "shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising the powers granted by this title" and has authorized the authority to maintain a transit police force (Public Authorities Law, § 1204, subd. 16) whose members are designated "police officers" for purposes of the Criminal Procedure Law ( § 1.20, subd. 34, par. and whose powers and duties as defined in section 1204, though geographically limited, are otherwise quite as broad as those of a municipal police officer. It has also in section 1212 of the Public Authorities Law decreed that the authority is responsible for the negligence of its employees in the operation of the subway system. However, nothing in the latter provision or in section 8 of the Court of Claims Act suggests any intention to abrogate with respect to the authority the rule recognized in Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, supra that the allocation of police resources to protection from criminal wrongdoing is a legislative-executive decision for which there is no liability.

    18

    As Riss makes clear, before liability should be imposed in such a case "there should be a legislative determination that that should be the scope of public responsibility" (22 N.Y.2d 579, 582, 293 N.Y.S.2d 897, 240 N.E.2d 860). Were the issue simply one of a duty to provide police protection, therefore, there would be no question that no duty was owed plaintiffs. It is, however, complicated by the facts that the police department is part of the authority operating the subways, that a private property owner owes a duty of such protection though it has no police force, and that a privately owned common carrier operating a railway system such as does the authority can have designated employees appointed as policemen with the same powers that a city or village policeman has (Railroad Law, § 88).

    19

    None of those factors is controlling. It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred (Bass v. City of New York, 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154, supra; Woodhull v. Mayor, 150 N.Y. 450, 453, 44 N.E. 1038; Pianka v. State, 46 Cal.2d 208, 293 P.2d 458; Guidi v. State, 41 Cal.2d 623, 262 P.2d 3; Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 223 P.2d 639; City of Macon v. Powell, 133 Ga.App. 907, 213 S.E.2d 63; see Herilla v. Mayor & City Council of Baltimore, 37 Md.App. 481, 378 A.2d 162; Crouch v. Hall, 406 N.E.2d 303).

    20

    The activities for which it is sought to hold the authority in the cases under consideration involve or grow directly out of the failure to allocate police resources--the absence of police surveillance at the entrance and the failure to warn of criminal activity in the area or close the entrance when police protection was not available. That the police and the common carrier activity (otherwise proprietary) are vested in the same entity will not lessen the crushing nature of the burden that would otherwise be imposed (Steitz v. City of Beacon, 295 N.Y. 51, 55, 64 N.E.2d 704) nor interfere less with the legislative-executive decision how to utilize such resources (see Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, supra). Nor should the fact that other carriers may have employees designated as policemen change the responsibility of the authority, for the allocation of such a carrier's police resources involves no interference by the judiciary with the legislative-executive decision made by the authority (see Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 204 N.E.2d 635; cf. Woodhull v. Mayor, 150 N.Y. 450, 44 N.E. 1038, supra; Biniewski v. City of New York, 267 App.Div. 108, 44 N.Y.S.2d 543, supra).

    21

    Accordingly, in the Weiner case the order of the Appellate Division should be reversed, with costs, and the question certified answered in the negative, and in the Shernov case the order of the Appellate [448 N.Y.S.2d 145] Division should be affirmed, with costs, and the question certified answered in the affirmative.

    22

    COOKE, C. J., and JASEN, GABRIELLI, JONES and WACHTLER, JJ., concur.

    23

    FUCHSBERG, J., taking no part.

    24

    In Weiner v. Metropolitan Transp. Auth.: Order reversed, with costs, and the complaint dismissed as against defendant New York City Transit Authority. Question certified answered in the negative.

    25

    In Shernov v. New York City Tr. Auth.: Order affirmed, with costs. Question certified answered in the affirmative.

    26

    [1] The action was begun against both the Metropolitan Transit Authority and the New York City Transit Authority. The Appellate Division affirmed so much of Trial Term's order as dismissed the action against MTA, plaintiff having conceded that MTA neither operated nor controlled any transit facility. MTA, therefore, is no longer in the case.

    27

    [2] No such relationship is claimed in either of the cases under consideration.

  • 4 Garcia v. Superior Court of Santa Clara County--"The Fatally Wrong Parole Officer"

    Should the government compensate individuals who rely upon the statements of government officials and are subsequently injured?

    Notes: While on parole, Napoleon Johnson—a convicted murderer—began a relationship and cohabiting with Grace Morales. After Morales moved out, the ex-convict repeatedly threatened her, attempted to stab her, sexually assaulted her at knife-point, and falsely imprisoned her. While Johnson was undergoing psychiatric treatment for threatening behavior, Johnson’s parole officer tried calling Morales to reconcile the relationship between the two. During the phone call, the parole officer insisted that Morales should not be worried about Johnson finding and hurting her. Soon after, Johnson kidnapped and killed Morales. Morales’ children sue on the theory that Morales would have taken safety measures to protect herself if it wasn’t for the statements of the parole officer.
    1
    268 Cal.Rptr. 779
    2
    50 Cal.3d 728, 789 P.2d 960
    3
    Adrian Bernardo GARCIA, Jr., et al., Petitioners,
    v.
    The SUPERIOR COURT of Santa Clara County, Respondent, The STATE of California, et al., Real Parties in Interest.
    4
    No. S004813.
    5
    Supreme Court of California
    6
    May 3, 1990.
    7

    Lucas, C.J., concurred and filed opinion in which Eagleson, J., joined.

    8

    Mosk, J., dissented and filed opinion in which Broussard, J., and White, J., assigned, joined.

    9

    [268 Cal.Rptr. 780] [50 Cal.3d 731] [789 P.2d 961] Garry, McTernan, Stender, Walsh & Schwartzbach, McTernan, Stender, Walsh & Schwartzbach, McTernan, Stender & Walsh, Cliff Weingus and Brian C. Walsh, San Francisco, for petitioners.

    10

    No appearance for respondent.

    11

    John K. Van de Kamp, Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Tyler Pon and Wayman M. Robertson, Jr., Deputy Attys. Gen., for real parties in interest.

    12

    Gerrit Jan Buddingh, Manteca, and Jacqueline A. Campbell, Sacramento, as amici curiae, on behalf of real parties in interest.

    13
    PANELLI, Justice.
    14

    Napoleon Johnson, Jr., a convicted murderer on parole, kidnapped and killed Grace Morales. Plaintiffs, the victim's children, have sued the State of California (State) and Johnson's parole officer for wrongful death and violation of the Civil Rights Act of 1871. (42 U.S.C. § 1983.) In their first amended complaint, plaintiffs alleged that the parole officer, Michael Ybarra, knew that Johnson had threatened to kill Morales but nevertheless told her that the parolee would "not come looking" for her. The superior court sustained demurrers by Ybarra and the State without leave [50 Cal.3d 732] to amend.[1] The Court of Appeal denied plaintiffs' petition for a writ of mandate. We affirm the Court of Appeal's holding that plaintiffs have not stated a cause of action and the dismissal of plaintiffs' purported cause of action under the Civil Rights Act. However, we hold that plaintiffs should have leave to amend to allege a cause of action for negligent misrepresentation involving a risk of physical harm.

    15
    I. FACTS
    16

    Our only task in reviewing a ruling on a demurrer is to determine whether the [268 Cal.Rptr. 781] [789 P.2d 962] complaint states a cause of action. Accordingly, we assume that the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702, 263 Cal.Rptr. 119, 780 P.2d 349; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) For these purposes we briefly summarize the complaint's pertinent allegations.

    17

    According to the first amended complaint, Johnson went to prison in 1974 for the murder of his wife. In August 1985, when he was released on parole, Ybarra became his parole agent. While on parole, Johnson "began a romantic relationship and cohabited with" Morales. In March 1986, when Morales moved out of Johnson's home, he "began a campaign of violence, intimidation and harassment directed at [her], which included attempted stabbings, repeated death threats at knife point, forced sexual relationships at knife point and false imprisonment."

    18

    When Ybarra learned that Johnson had threatened Morales's life, the parole officer met with Morales "in the presence of Johnson to inquire regarding the alleged threats." Johnson denied the threats, and Ybarra initially "concluded that the threats had not been made." But Johnson repeated his threats about a week later, telling Ybarra that "he was looking for [Morales]" and that "[he would] kill her if [he] found her." At this point, Ybarra concluded that Johnson was dangerous and placed him in 72 hours' custody for psychiatric observation. Upon Johnson's release, Ybarra [50 Cal.3d 733] "instructed [him] to engage in [further,] intensive treatment with the parole department's staff psychologist."

    19

    While Johnson was undergoing psychiatric treatment, an attorney who was representing Morales in a child custody proceeding attempted to obtain information from Ybarra about Johnson's prior murder conviction. The attorney told Ybarra "that she was applying for a temporary restraining order." Ybarra "refused to tell [the attorney] the nature of the crime,[2] but advised her that the crime committed was not of the type which would indicate that Johnson represented a danger to [Morales's] children." However, Ybarra "was still of the opinion that Johnson was very jealous and potentially violent," and he told Morales' attorney that he would serve the temporary restraining order and arrest Johnson.

    20

    Later, however, Ybarra apparently changed his mind. At some point "he telephoned decedent in an attempt to reconcile the relationship [sic ] between Johnson and [Morales]." The subject of the telephone conversation was death threats. Morales told Ybarra what she feared: "Johnson knew where [she] was living" and "still intended to physically harm her." However, Ybarra told Morales: "I don't think you have anything to worry about. He's not going to come looking for you."[3] "Ybarra further assured [Morales] of her safety by emphasizing to her that Johnson had told him that he was still in love with [Morales], and repeatedly asking her if she really wanted to end the relationship."

    21

    Plaintiffs do not allege, however, that Morales believed Ybarra or actually and reasonably relied on his assurances. Instead, plaintiffs conclude their pleading with this general allegation of causation: "As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson." [268 Cal.Rptr. 782] [789 P.2d 963] Subsequently, "Johnson kidnapped and shot [her]."

    22
    [50 Cal.3d 734] II. DISCUSSION
    23
    A. The State Law Claim
    24

    In their first amended complaint, plaintiffs have labelled their claim under state law simply one for "wrongful death." The Court of Appeal held that plaintiffs had not stated a cause of action because their allegations did not establish that Ybarra occupied a "special relationship" with either Johnson or Morales. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 433-435, 131 Cal.Rptr. 14, 551 P.2d 334.) However, the court's search for a special relationship was unnecessary. A special relationship is a prerequisite for liability based on a defendant's failure to act. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334; see also Rest.2d, Torts (1965) § 315.) In contrast, plaintiffs in this case assert that Ybarra is liable because his allegedly negligent representations about Morales's physical safety induced her to be less careful.[4] Accordingly, it is unnecessary to look beyond the ordinary rules that determine when misrepresentations are actionable.

    25

    Negligent misrepresentations involving a risk of physical harm are actionable under the circumstances described in Restatement Second of Torts, supra, section 311. Under that section, "(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other.... (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." California courts, in holding that plaintiffs have stated causes of action for negligent misrepresentations causing physical harm, have relied both on section 311 (Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 683-688, 81 Cal.Rptr. 519) and on Civil Code section 1710, subdivision 2 (Barbara A. v. John G. (1983) 145 [50 Cal.3d 735] Cal.App.3d 369, 375-376, 193 Cal.Rptr. 422).[5] Scholars have also recognized the theory. (Prosser & Keeton on Torts (5th ed. 1984) ch. 5, § 33, at pp. 205, fn. 26, 205-208.)

    26

    Accordingly, we examine whether plaintiffs have stated a cause of action for negligent misrepresentation involving a risk of physical harm. First, plaintiffs must allege that Ybarra had a duty to exercise reasonable care in giving Morales information about Johnson. As Prosser has observed, "[i]n all cases of negligent misrepresentation ... the circumstances must be such that the defendant is under a duty to the plaintiff to exercise reasonable care in giving the information, and that reliance upon what he says, with resulting danger, is reasonably to be expected." (Prosser & [268 Cal.Rptr. 783] [789 P.2d 964] Keeton on Torts, supra, ch. 5, § 33, at p. 207.) In this context, "duty" and "reasonable reliance" are closely connected. The likelihood that one's statements about personal safety will be taken seriously is a primary factor in determining whether one has a duty to exercise care in making such statements. As the Restatement puts it, such a duty "extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend on the accuracy of the information." (Rest.2d Torts, supra, § 311, com. b, at p. 106.)

    27

    Misrepresentations involving a risk of physical harm constitute an exception to the ordinary rule that "liability [for negligent misrepresentations] is imposed only on those who supply information for business purposes in the course of a business or profession." (See 5 Witkin, Summary of Cal.Law, supra, Torts, § 721, at p. 820.) The ordinary rule is based on the principle that, in financial matters, a plaintiff "cannot expect the defendant to exercise the same degree of care [in social meetings] as he would when acting in a business or professional capacity." (Ibid.) The misrepresentations in this case, of course, were not made in a financial context. However, the duty to use reasonable care in giving information applies more broadly when physical safety is involved. In cases "[w]here ... the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be liability for the negligence even though the information is given gratuitously and the actor derives no benefit from giving it."[6] (Rest.2d Torts, supra, § 311, com. c, at p. 107; see also Barbara [50 Cal.3d 736] A. v. John G., supra, 145 Cal.App.3d at pp. 375-376, 193 Cal.Rptr. 422; Connelly v. State of California (1970) 3 Cal.App.3d 744, 752, 84 Cal.Rptr. 257 [finding causes of action for gratuitous negligent misrepresentations involving risks of physical harm].)

    28

    In view of Johnson's threats, did Ybarra have a duty to use reasonable care in giving Morales information about her personal safety? Ordinarily, of course, law enforcement personnel have no duty to volunteer information about released criminals under their supervision. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749-758, 167 Cal.Rptr. 70, 614 P.2d 728; J.A. Meyers & Co. v. Los Angeles County Probation Dept. (1978) 78 Cal.App.3d 309, 314-315, 144 Cal.Rptr. 186; cf. Davidson v. City of Westminster, supra, 32 Cal.3d at pp. 201-209, 185 Cal.Rptr. 252, 649 P.2d 894 [police officer has no duty to warn about possible violence by a suspect under surveillance].) Nevertheless, the absence of a duty to speak does not entitle one to speak falsely. Thus, we may approach the duty question in this case by asking whether a reasonable parole officer, having chosen for whatever reason to provide information to a potential victim about a parolee's dangerousness, "knows or should realize that [the listener's] safety ... may depend on the accuracy of the information." (Rest.2d Torts, supra, § 311, com. b, at p. 106.) Since parole officers have statutory obligations to supervise parolees and expertise in doing so, a member of the public might reasonably believe that an officer who has chosen to discuss a parolee's dangerousness "purports to have special knowledge of the matter, or special reliability." (Id., com. c, at p. 107.) Accordingly, we conclude that Ybarra, having chosen to communicate information about Johnson to Morales, had a duty to use reasonable care in doing so.

    29

    Second, plaintiffs must allege that Ybarra gave false information to Morales [268 Cal.Rptr. 784] [789 P.2d 965] with a degree of culpability at least equal to negligence. Under Restatement Second of Torts, supra, section 311, "[s]uch negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." Plaintiffs have met this requirement as a matter of pleading. To quote the complaint, Johnson had told Ybarra that "he was looking for [Morales] and that he would "kill [her] if [he] found her." Despite this knowledge, however, Ybarra allegedly told Morales that Johnson was "not going to come [50 Cal.3d 737] looking" for her, and "further assured [her] of her safety by emphasizing to her that Johnson had told him that he was still in love with [her]...." Solely as a matter of pleading, these allegations suffice to raise a question about whether Ybarra exercised due care in communicating to Morales what he knew about Johnson's threats.

    30

    Third, as in all cases for negligent misrepresentation, plaintiffs must allege facts sufficient to show that Morales actually and reasonably relied on the alleged misrepresentations.[7] The complaint, however, is deficient in this regard. In view of the very specific allegations that Morales was afraid of Johnson because of his past death threats and violent behavior towards her, the allegation that she "failed to take steps to protect herself from Johnson" does not suffice. "The court should not be required by conjecture to supply a necessary but missing allegation, which, if it had been made, would run counter to reasonable probability, even though it would have to be accepted as true for the purpose of testing the sufficiency of the complaint." (Vice v. Automobile Club of So. Cal. (1966) 241 Cal.App.2d 759, 764, 50 Cal.Rptr. 837.)

    31

    Finally, plaintiffs must allege that Morales's reliance on Ybarra's representations proximately caused her death. At present, plaintiffs have alleged that, "[a]s a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson," who "kidnapped and shot [her]." This general allegation suffices as a matter of pleading solely on the issue of causation. As we have already noted, however, plaintiffs cannot establish a complete causal relationship between Ybarra's statements and Morales's death, and thus state a cause of action, without the further allegation that Morales actually and reasonably relied on Ybarra's statements about Johnson.

    32

    [50 Cal.3d 738] At oral argument, counsel indicated that plaintiffs were willing to amend to state a cause of action for negligent misrepresentation. Plaintiffs are entitled to leave to amend because the lower courts did not address the theory on which we now rely.[8] (Williams v. State of California, [268 Cal.Rptr. 785] [789 P.2d 966] supra, 34 Cal.3d 18, 28, 192 Cal.Rptr. 233, 664 P.2d 137.)

    33
    B. The Federal Claim
    34

    Plaintiffs have also attempted to state causes of action against the State and Ybarra under the Civil Rights Act of 1871 (42 U.S.C. § 1983; hereafter section 1983).[9] However, plaintiffs appear to be proceeding under the incorrect assumption that section 1983 simply federalizes all tort claims against state actors. In essence, petitioners merely incorporate their earlier allegations about Ybarra's "conduct" and add boiler-plate allegations of [50 Cal.3d 739] recklessness, deprivation of life, official policy, and entitlement to attorney's fees.

    35

    Recent decisions of the United States Supreme Court make it impossible for these plaintiffs to state such a claim. In Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, the Court held that neither a state nor a state official acting in his official capacity is a "person" subject to suit under section 1983. (Will, supra, 109 S.Ct. at pp. 2307-2312.) Accordingly, plaintiffs may not recover under that section either from the State or from Ybarra in his capacity as parole officer. Nor is Ybarra liable to plaintiffs in his individual capacity. The Supreme Court's opinion in DeShaney v. Winnebago County DSS (1989) 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (DeShaney) makes it clear that a constitutional "deprivation" can only be caused by a person acting under color of state law. In this case, however, the actor who caused Morales's death was Johnson, not Ybarra.

    36

    The State's failure to prevent harm inflicted by a private actor does not give rise to a cause of action under section 1983. This is the teaching of DeShaney: "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." (DeShaney, supra, 109 S.Ct. at p. 1006.) "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or similar restraint of personal liberty--which is the 'deprivation of liberty' triggering the protections [268 Cal.Rptr. 786] [789 P.2d 967] of the Due Process Clause, not its failure to protect his liberty interests against harms inflicted by other means." (Ibid.)

    37

    We cannot avoid this holding, as plaintiffs suggest, on the basis of Ybarra's involvement in Morales's affairs. The DeShaney court held that a substantially greater degree of state involvement did not give rise to a claim under section 1983.

    38

    The plaintiff in DeShaney was Joshua, a young boy who was severely beaten by his father and is now profoundly retarded as a result. The beating followed substantial involvement by the defendants, a county and its department of social services, in attempting to protect Joshua. At one point, based upon reports of child abuse by a physician, the county even removed Joshua from his father's custody. When the father agreed to cooperate by enrolling Joshua in pre-school and by receiving counselling, the county returned the boy to the home where he had suffered abuse. Although medical personnel [50 Cal.3d 740] reported further abuse, Joshua's caseworker took no more action. On monthly home visits the caseworker, herself, saw suspicious injuries on the boy's head and saw that his father was not complying with his agreement. On two visits the caseworker was told that Joshua was too ill to see her. But she continued to take no action, and the severe beating followed. Based on these facts the Supreme Court held that federal law did not provide relief.

    39

    The county's decision to return Joshua to his father's custody undeniably increased the risk of injury. However, the Supreme Court expressly held that it "does not alter the analysis" that "the State once took temporary custody of Joshua ..., for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all...." (DeShaney, supra, 109 S.Ct. at p. 1006.) If one questions whether Joshua, a young boy, was really "free[ ] to act on his own behalf" (ibid.), then that only proves the instant case. In a much more substantial sense Ybarra left Morales, a competent adult, free to take whatever measures she thought appropriate for her own protection, informed by her personal knowledge of Johnson and his threats and violence towards her.[10]

    40

    Plaintiffs argue that the decision in Wood v. Ostrander (9th Cir.1989) 879 F.2d 583 (Wood ), supports a different result. In Wood, however, unlike DeShaney and the case before us, the defendant physically limited the plaintiff's ability to act on her own behalf.[11] (Cf. DeShaney, supra, 109 S.Ct. at p. 1006.) The defendant, a Washington State Trooper, arrested a motorist for driving while intoxicated, confiscated the keys to his car, and then simply drove away, leaving his female passenger, the plaintiff, in a high crime area where she was picked up by another driver and raped. (Wood, supra, 879 F.2d at p. 586.) By depriving the plaintiff of transportation in a high crime area, the defendant left her [50 Cal.3d 741] in a much worse position than before, having substantially limited her ability to protect herself. In contrast, Ybarra left Morales in the same position as before, still [268 Cal.Rptr. 787] free to [789 P.2d 968] take any measures she wished to protect herself from Johnson.

    41

    If the result that DeShaney compels in this case seems harsh, it is important to remember that our mandate changes when we interpret section 1983. When we interpret that statute, we deal not with the redress of private wrongs but with the allocation of lawmaking power between the federal and state governments. "A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes." (DeShaney, supra, 109 S.Ct. at p. 1007.) But the power to impose such duties does not derive from section 1983. "[N]ot 'all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment.' " (DeShaney, supra, 109 S.Ct. at p. 1007, quoting Daniels v. Williams (1986) 474 U.S. 327, 335, 106 S.Ct. 662, 667, 88 L.Ed.2d 662.)

    42
    III. CONCLUSION
    43

    The decision of the Court of Appeal is affirmed insofar as it holds that plaintiffs have not stated a cause of action and dismisses the purported cause of action under 42 United States Code section 1983. The decision is reversed insofar as it denies leave to amend. Accordingly, the case is remanded to the Court of Appeal, which shall vacate its order denying the petition for a writ of mandate. The Court of Appeal shall also enter a new order granting the petition and directing the superior court to vacate its judgment of dismissal and grant plaintiffs leave to amend to state a cause of action for negligent misrepresentation involving a risk of physical harm.

    44

    LUCAS, C.J., and EAGLESON and KENNARD, JJ., concur.

    45
    LUCAS, Chief Justice, concurring.
    46

    The majority holds the facts alleged in the complaint may state a cause of action for "negligent misrepresentation," as defined in Restatement (Second) of Torts, section 311, but implicitly holds plaintiffs are precluded from stating a cause of action for "mere" or "regular" negligence. The dissent, quoting language from venerable commentators, asserts that for decades courts have upheld judgments predicated on regular negligence liability in cases of physical injury resulting from negligent misrepresentations, and have not required the plaintiff to meet the more demanding requirement of section 311, i.e., that he prove his "reasonable reliance" on the defendant's representation. Because I believe the dissent [50 Cal.3d 742] misstates the common law rule that it would perpetuate, and because the majority neither responds, nor sets forth the history of section 311, I write separately to express my views.

    47

    The dissent finds support for its position in the statement in Prosser & Keeton on Torts (5th ed. 1984), section 33, at page 205, to the effect that "for the most part cases of misrepresentation resulting in physical harm have been dealt with in an action for negligence. " (Italics added in dis. opn. at p. 15.) Similarly, it quotes 2 Harper et al., The Law of Torts (2 ed. 1986) section 7.6, pages 403-404: "where misrepresentations entail the foreseeability of physical harm and such harm in fact results, the ordinary rules of negligence have for some time been applied. " (Italics added in dis. opn. at p. 15.) Whatever these statements may have been intended to convey, they do not stand for the proposition advanced by the dissent, i.e., that at common law a plaintiff's reasonable reliance on another's representation was irrelevant to stating a prima facie case for "negligence." In each case cited in support of the italicized proposition in the respective treatises, the court implicitly or expressly recognized a need for reasonable reliance by the plaintiff--or the reasonableness of the reliance is patent on the face of the opinion. (See Prosser & Keeton, supra, § 33, p. 205, fns. 27-30; 2 Harper et al., supra, § 7.6, pp. 403-404, fn. 1.) Moreover, in fact, both treatises cite section 311 of the Restatement in support of their italicized statements--a seeming anomaly that the dissent conveniently ignores.

    48

    The historical development of the tort explains and supports the conclusion of the majority that reasonable reliance is and should be an element of the cause of action. [268 Cal.Rptr. 788] [789 P.2d 969] In the late 1920s and early 1930s there was considerable debate about the nature of the emerging misrepresentation cause of action, and the limits that should be placed on such an action. (See, e.g., Bohlen, Misrepresentation as Deceit, Negligence, or Warranty (1929) 42 Harv.L.Rev. 733; Green, Deceit (1930) 16 Va.L.Rev. 749; Carpenter,Responsibility for Intentional, Negligent and Innocent Misrepresentation (1930) 24 Ill.L.Rev. 749; Bohlen, Should Negligent Misrepresentation be Treated as Negligence or Fraud? (1932) 18 Va.L.Rev. 703; Green, Innocent Misrepresentation (1933) 19 Va.L.Rev. 242.)

    49

    On the basis of sparse and evolving case authority, in 1934 the drafters of the original Restatement of Torts adopted former section 311, which articulated a circumscribed rule under which certain persons whose business it is to give out information could be held liable for bodily harm resulting from a plaintiff's "expectable" reliance on their misrepresentations. Thereafter a "negligent misrepresentation" cause of action, based in part on the authority of section 311 and in part on preexisting common law, continued to [50 Cal.3d 743] develop. In response to ongoing concern that there should be limits on liability for negligent misrepresentation (cf. Harper, A Treatise on the Law of Torts (1938) § 76, and in particular pp. 178 [emphasizing the need for justifiable reliance] and 181 [discussing the plaintiff's duty to exercise due diligence] ), courts grafted onto the "negligence" action a "reasonable reliance" element. Accordingly, in two notable cases courts expressly declined to find liability for personal injuries because the plaintiff had failed to establish reasonable reliance on the defendant's representation. (See, e.g., Holt v. Kolker (1948) 189 Md. 636, 57 A.2d 287; Webb v. Cerasoli (N.Y.1949) 275 App.Div. 45, 48-50, 87 N.Y.S.2d 884 (plur. opn.) & pp. 50-51, 87 N.Y.S.2d 884 (conc. opn., asserting plaintiff barred by contributory negligence), affd. mem. (1949) 300 N.Y. 603, 90 N.E.2d 64.)

    50

    This evolution of the common law was codified by the drafters of the second Restatement. In their Tentative Draft No. 5, issued in April 1960, the drafters revised former section 311 by, inter alia, inserting an express "reasonable reliance" condition. They also observed in their note to the American Law Institute that both Holt, supra, 189 Md. 636, 57 A.2d 287, and Webb, supra, 275 App.Div. 45, 87 N.Y.S.2d 884, found absence of liability "on the ground that there was no justifiable reliance...." (Italics added.)[1]

    51

    Accordingly, it appears to me that the dissent--and the commentators on which it relies--misperceive the true state of the common law by asserting without qualification that actions for negligent misrepresentation have long been analyzed under simple "negligence" principles. In fact, as [268 Cal.Rptr. 789] [789 P.2d 970] noted above, [50 Cal.3d 744] each of the prior cases in which recovery was allowed either recognized the plaintiff's reasonable reliance, or such reliance was clear from the facts. Conversely, when reasonable reliance has not been proved, recovery has not been allowed. The Restatement did not alter this common law rule, but merely "codified" it; the majority opinion, by following the Restatement, does not depart from the common law, but rather adheres to it.

    52

    I believe there are legitimate jurisprudential and policy reasons to require a plaintiff to plead and prove reasonable reliance when alleging that a negligently made misrepresentation resulted in physical injury. In such situations the plaintiff will often be in the best position, and have the final opportunity, to avoid any risk of harm. He must ultimately decide, based on his own assessment of the circumstances known to him, whether to act on the representations of the defendant. Moreover, a plaintiff will often be the party most capable of correctly evaluating a risk. Finally, fairness dictates that a plaintiff justify his reliance, and that the reliance be reasonable, lest the speaker incur liability out of all proportion to his culpability for careless speech. For these reasons I concur in the majority's election to adopt the Restatement view of liability for negligent misprepresentation resulting in physical harm, to the exclusion of a "traditional" negligence action.[2]

    53

    EAGLESON, J., concurs.

    54
    MOSK, Justice, dissenting.
    55

    Although it characterized Ybarra's "advice" as "clearly outrageous conduct," the Court of Appeal nevertheless held that the complaint fails to state a cause of action on three grounds: it is not plainly foreseeable that because of Ybarra's "ill advised" statements, Morales would be murdered; the causal connection between Ybarra's advice and Morales's death is too nebulous; and expanding the liability of parole officers would impose too heavy a burden on the community.

    56

    Underlying the foregoing grounds, each of which is demonstrably wrong or embodies an erroneous legal standard, appears to be the appellate court's fatalistic view that "in the less than two-week period that elapsed between Ybarra's conversation with Morales and her death, it is highly speculative to assume that she could have accomplished any improvement in her security. The frightening reality is that for one in Morales's position there is frequently nothing she can do to protect herself." The majority in essence adopt this view, although in a less obvious and objectionable form and, in affirming the lower court's holding, compound rather than correct its errors.

    57

    [50 Cal.3d 745] The most glaring of the majority's errors is their failure to abide by the traditional standards governing review of complaints on demurrer. For example, it is too well established to require citation that a plaintiff should plead only facts, not legal conclusions. By insisting that plaintiffs plead Morales's conduct was "reasonable," the majority violate this fundamental rule. They announce that "we cannot just assume that Morales did rely on Ybarra's reassurances," purportedly because the complaint specifically alleges that Morales was afraid of Johnson. But their conclusion is illogical and flies in the face of the basic principle that all reasonable inferences must be drawn in favor of the pleader. In fact, precisely because Morales was aware that Johnson was dangerous before Ybarra called her, we are compelled to infer that she must have relied on Ybarra's statements in choosing not to take steps to protect herself.

    58

    In addition to misapplying established law, the majority create new law that is ill-advised and potentially mischievous. Despite clear controlling precedent of this court and the painstaking efforts of commentators, the majority confuse misrepresentations resulting in physical injury with [268 Cal.Rptr. 790] [789 P.2d 971] the common law tort of negligent misrepresentation. The latter is a distinct form of tort liability; its origins lie in the common law actions of fraud and deceit. Quite naturally, it shares with fraud and deceit the requirement that causes of action thereunder be pleaded with specificity. By contrast, negligent misrepresentation resulting in physical harm is not a separate tort and, as many commentators have taken pains to clarify, the rules of simple negligence apply.

    59

    The practical effect of the majority's error is negligible in this case; on remand, plaintiffs will simply add five words to the complaint and proceed.[1] I find it surprising that the majority would labor thus to overrule sub silentio a venerable opinion of this court and depart from the commentators simply to bring forth this procedural mouse. The opinion might create serious problems in future cases, however, because of the many differences between negligence and the common law tort of negligent misrepresentation. In addition to the special pleading requirement referred to above, negligent misrepresentation has a number of special limitations, derived from the rules governing fraud, in the areas of causation, damages and the class of plaintiffs entitled to recover. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 721, pp. 819-821; compare Rest.2d Torts, § 311 with [50 Cal.3d 746] id., § 552.) In addition, the defense of comparative negligence may not be raised to a cause of action for negligent misrepresentation.

    60

    The majority characterize the liability for negligent misrepresentation resulting in physical harm as "an exception" to the ordinary rule that liability for the common law tort of negligent misrepresentation is imposed only on those who supply information for business purposes. In doing so, the majority reveal a profound misunderstanding of the law. The fact is that negligent misrepresentations resulting in physical harm have been the basis for liability in negligence long before the distinct common law tort of negligent misrepresentation was developed. "The courts which impose liability for negligent misrepresentation in cases in which the injury is financial or economic rather than to person or property are merely extending to interests of economic, financial and business advantage a protection similar, though not identical, to that which has been for years given to interests in security of person and property." (Bohlen, Should Negligent Misrepresentations Be Treated as Negligence or Fraud? (1932) 18 Va.L.Rev. 703, 706.) Negligence is not an exception to negligent misrepresentation. And to the extent that the protection afforded by the law of negligence is "not identical" to the protection afforded by the law of negligent misrepresentation, the majority's error sows the seed of confusion.

    61
    I
    62

    According to the first amended complaint, Napoleon Johnson, Jr., was convicted of murdering his wife in 1973. He was released on parole in 1985 under the supervision of Michael Ybarra, a parole officer employed by the state. Johnson then began a romantic relationship and cohabited with Grace Morales. In March 1986 Morales moved out of Johnson's residence and he began a campaign of violence and harassment against her, including sexual intercourse at knife point and death threats.

    63

    After Ybarra learned that Johnson had threatened the life of Morales, the parole officer met with her in the presence of Johnson to ask about the alleged threats. Johnson denied making the threats, and Ybarra initially concluded that he had not made them. About a week later, however, on April 3, 1986, Johnson told Ybarra that he felt jealous, angry and abandoned, and that "he was looking for [Morales]." Johnson then said, "I'd kill [Morales] if I found her." The complaint alleges that Ybarra knew Johnson had killed his wife in a fit of jealousy over the breakup of their marriage.. [268 Cal.Rptr. 791] [789 P.2d 972] Ybarra committed Johnson to a medical facility under the provisions of the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000 et seq.). After [50 Cal.3d 747] Johnson was released, Ybarra instructed him to undergo intensive treatment with the parole department staff psychologist.

    64

    During this time an attorney, Marta Vides, was representing Morales in connection with custody proceedings involving her children. Vides learned of Johnson's violence and threats against Morales and, on April 9, 1986, she told Ybarra that Johnson had attempted to stab Morales, and that she intended to apply for a temporary restraining order to protect Morales from Johnson. Ybarra agreed to serve the order and arrest Johnson.[2]

    65

    Thereafter, in a telephone conversation Morales told Ybarra that Johnson knew where she was living and advised him that she thought Johnson still intended to physically harm her. "In spite of decedent's expressed fears," the complaint alleges, Ybarra replied, "I don't think you have anything to worry about. He's not going to come looking for you." He repeatedly asked her if she really wanted to end the relationship, and told her that Johnson had said he was still in love with her.

    66

    The complaint further alleges that as a proximate result of Ybarra's conduct, Morales "failed to take steps to protect herself from Johnson." One week later, Johnson kidnapped Morales and shot her to death. Her surviving children brought this lawsuit.

    67
    II
    68

    The majority fault plaintiffs for failing to allege sufficient facts to show that their mother "actually and reasonably" relied on Ybarra's statements. The reasonableness of a plaintiff's conduct (or in this case, that of the plaintiffs' decedent) is not an element of a cause of action for negligence and is properly considered, if at all, as a matter of comparative negligence. (See part IV, post.) But even if reasonable reliance were an element of plaintiffs' cause of action, the facts alleged in the first amended complaint meet the pleading requirements. As the majority opinion itself correctly explains, "Since parole officers have statutory obligations to supervise parolees and expertise in doing so, a member of the public might reasonably believe that an officer who has chosen to discuss a parolee's dangerousness 'purports to have special knowledge of the matter, or special reliability.' " (Ante, at p. 783, of 268 Cal.Rptr., at p. 964, of 789 P.2d.) (italics added). Yet ignoring the rule that the pleader is entitled to all reasonable presumptions and inferences, the majority appear to believe that Morales was unreasonable in relying, or did not in fact rely, on Ybarra's [50 Cal.3d 748] statements "in view of the very specific allegations that Morales was afraid of Johnson because of his past death threats and violent behavior towards her." (Ante, at p. 784, of 268 Cal.Rptr., at p. 965, of 789 P.2d.)

    69

    Those allegations, however, do not detract from the aura of reliability surrounding Ybarra's statement. Ybarra told Morales that Johnson "would not come looking for you." This is not idle chitchat of an unconcerned bystander; it is a statement by a parole officer to a known victim of his parolee's violence on a matter of grave concern to the victim's safety. It is phrased not as an opinion but as an unconditional fact, and it implies knowledge of other, unstated facts--perhaps that "Johnson assured me he would not look for you" or that "I told Johnson if he threatened you again, I would take steps to revoke his parole." The majority are too readily convinced by Ybarra who in hindsight now declares, "I did not reasonably expect Morales to rely on my assurances." I am not convinced, but in any event that is a question for the jury.

    70
    III
    71

    Negligence and negligent misrepresentation are different torts and to confuse the [268 Cal.Rptr. 792] [789 P.2d 973] two, as the majority do today, is to ignore the lesson taught by this court in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (Johnson ), and by commentators. Negligence took shape as a separate tort in the early part of the 19th century. (See generally Prosser & Keeton on Torts (5th ed. 1984) § 28, p. 161.) Negligent misrepresentation was not actionable in this country until 1922 (Glanzer v. Shepard (1922) 233 N.Y. 236, 135 N.E. 275) and in England until 1963 (Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] App.Cas. 465). The tort of negligence was designed to protect against harm to person and property (Prosser & Keeton, op. cit. supra, § 33, at p. 205); negligent misrepresentation is generally confined to injuries to pecuniary interests, such as sales and credit transactions (ibid.). "[T]he scope of liability for negligent misrepresentation is not as broad as in other fields of negligence, but is subject to certain important limitations derived from the rules governing intentional fraud." (5 Witkin, Summary of Cal.Law, Torts, op. cit. supra, § 721, at p. 819 (Italics omitted.).) One of those rules--that the plaintiff must plead a cause of action for fraud with particularity--is the basis of the majority's error in this case (see part II, ante ).

    72

    In Johnson, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, the plaintiffs brought an action for personal injuries against the state, alleging that a placement officer of the California Youth Authority acted negligently by allowing a boy with homicidal tendencies to be placed in their home. The original complaint alleged [50 Cal.3d 749] that the parole officer had affirmatively misrepresented that the youth had no background of violence, and defendant successfully demurred asserting the immunity provided by Government Code section 818.8 (section 818.8).[3] In holding that the trial court improperly sustained the demurrer, we explained, " 'many familiar forms of negligent conduct may be said to involve an element of "misrepresentation," in the generic sense of that word, but "[s]o far as misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit," and has been confined "very largely to the invasion of interests of a financial or commercial character, in the course of business dealings." ' ... [p] In short, 'misrepresentation,' as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial or commercial interest." (69 Cal.2d at p. 800, 73 Cal.Rptr. 240, 447 P.2d 352, quoting United States v. Neustadt (1961) 366 U.S. 696, 711, fn. 26, 81 S.Ct. 1294, 1302, fn. 26, 6 L.Ed.2d 614, italics added.)

    73

    Many cases have followed Johnson. In Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 247 Cal.Rptr. 504 (Michael J.), adoptive parents and an adoptee brought an action for negligence, fraud and personal injury against the county department of adoptions alleging that the defendant represented that the adoptee was completely healthy when in fact he suffered from a congenital degenerative nerve disorder. After quoting at length from Justice Tobriner's opinion in Johnson, the court explained that the adoption process is not a commercial transaction, such as leasing and purchasing property or contracting for a pension, and the allegedly negligent governmental entity engaged in that process was not entitled to immunity under section 818.8.

    74

    In Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 245 Cal.Rptr. 78 (Bastian ), a newspaper photographer photographed an accident scene in which a driver was killed when he was thrown from his car. Unbeknown to the photographer, a deputy sheriff had discovered a vodka bottle lying in the area and placed it alongside the driver's body with the label facing up. After the photographer was sued by the driver's family and fired by the newspaper, he sued the county and the deputy sheriff for negligence and intentional misrepresentation.. [268 Cal.Rptr. 793] [789 P.2d 974] Relying on Johnson, the court concluded that "[m]isrepresentation or concealment is commonly a distinct cause of action only where the relationship between the parties is financial or commercial" (id. at p. 531, 245 Cal.Rptr. 78), and held that section 818.8 did not shield the government entity from the photographer's cause of action for negligence.

    75

    [50 Cal.3d 750] In Connelly v. State of California (1970) 3 Cal.App.3d 744, 84 Cal.Rptr. 257 (Connelly ), the plaintiff's marinas suffered extensive damage when rivers reached flood stage. He sued the state for negligence alleging that during the period of heavy rains, he periodically telephoned the state water resources department and was given inaccurate river height forecasts, which caused him to set his marina docks to float at too low a level. The court concluded that "although [the plaintiff] suffered a commercial loss in the sense that his business installations were damaged, the loss did not result from a commercial transaction between him and the state, nor from the state's interference with his commercial transactions. The complaint alleges a service gratuitously performed by the state in a negligent manner, resulting in physical damage to property. As there is no allegation of a tortious interference by the state with appellant's commercial activities within the rationale of Johnson, we conclude that section 818.8 does not apply to this case." (Id. at p. 752, 84 Cal.Rptr. 257.)[4]

    76

    In all these cases, the plaintiffs alleged causes of action for negligence, not negligent misrepresentation. (Michael J., supra, 201 Cal.App.3d at p. 863, 247 Cal.Rptr. 504; Bastian, supra, 199 Cal.App.3d at p. 533, 245 Cal.Rptr. 78; Connelly, supra, 3 Cal.App.3d at p. 747, 84 Cal.Rptr. 257 ["we are confronted with the threshold question whether appellant has stated a cause of action under the general laws of negligence"].) Once the courts determined that the plaintiffs were in fact not alleging an invasion of financial interests arising out of a commercial transaction, they followed the command of Johnson and held that section 818.8 immunity was inapplicable.[5]

    77

    [50 Cal.3d 751] It is true that during the first half of this century there was considerable controversy and confusion over the theory of negligent misrepresentation.[6] Johnson and its progeny put the confusion to rest. Modern commentators have unequivocally expressed the same view: that negligent [268 Cal.Rptr. 794] misrepresentations [789 P.2d 975] resulting in physical injury are treated under the rules of simple negligence. As Dean Prosser explained, "A great many of the common and familiar forms of negligent conduct, resulting in invasions of tangible interests of person or property, are in their essence nothing more than misrepresentation, from a misleading signal by a driver of an automobile about to make a turn, or an assurance that a danger does not exist, to false statements concerning a chattel sold, or non-disclosure of a latent defect by one who is under a duty to give warning.... In all such cases the particular form which the defendant's conduct has taken has become relatively unimportant, and misrepresentation has been merged to such an extent with other kinds of misconduct that neither the courts nor legal writers have found any occasion to regard it as a separate basis of liability." (Prosser & Keeton, op. cit. supra, § 105, at pp. 725-726, fns. omitted, italics added.)

    78

    Prosser and Keeton went on to state, "Liability in negligence sometimes rests upon some form of misrepresentation on the part of the defendant, by which the plaintiff, or some third person, has been misled to the plaintiff's damage. The remedy of an action for deceit[7] ... has generally been confined to cases in which the interest affected is a pecuniary one, such as sales and credit transactions. Although negligence is sometimes involved in such cases, it has been kept within somewhat more narrow limits than where the harm is to person or property. Deceit has served as an occasional remedy where there is such harm to tangible interests, but for the most part cases of misrepresentation resulting in physical harm have been dealt with in an action for negligence. " (Id. at p. 205, fns. omitted, italics added.) In describing situations analogous to the case at bar, Prosser and Keeton wrote, "An assurance that a bridge or campus is safe, or that there is no danger from blasting operations, or from the location of a plane, may result in liability for negligence when the plaintiff relies upon the assurance and suffers injury." (Id. at pp. 205-206, fns. omitted, italics added.)

    79

    Similarly, Professors Harper and James explained that "where misrepresentations entail the foreseeability of physical harm and such harm [50 Cal.3d 752] in fact results, the ordinary rules of negligence have for some time been applied." (2 Harper, et al., The Law of Torts (2d ed. 1986) § 7.6, p. 403, italics added.) They offer two reasons why negligent misrepresentation is a more limited tort than negligence. First, "the range of physical harm is more limited. In the field of economic harm, however, '[i]f liability for negligence exists, a thoughtless slip or blunder ... may expose [defendants] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.' " (Id. at p. 404, quoting Ultramares Corp. v. Touche, Niven & Co. (1931) 255 N.Y. 170, 174 N.E. 441.) Second, "A person who relies on a misrepresentation can recover for losses ... only if the law regards his reliance as justifiable. This limitation on liability again reflects the customs and ethics of the market place, which have traditionally allowed some latitude for dishonesty in bargaining situations.... In bargaining, as in diplomacy and politics, there is an area in which a certain amount of rhetoric is used and expected, and nobody has a right to take it seriously." (Harper, et al., op. cit. supra, § 7.8, at pp. 423-424.)

    80

    When Prosser and Keeton noted that "neither the courts nor legal writers have found any occasion to regard [misrepresentations resulting in physical harm] as a separate basis of liability" (op. cit. supra, § 105, p. 726), why do the majority choose this occasion to ignore stare decisis and to create new law? They rely in part on section 311 of the Restatement (Second) of Torts. Section 311 was not intended, however, to create a basis of liability separate from and narrower than the tort of negligence. All the comments to that section emphasize the breadth of liability for negligent misrepresentations resulting in physical harm, indicating that the members intended [268 Cal.Rptr. 795] [789 P.2d 976] to clarify the broad rules of negligence, not create a narrower tort.

    81

    As comment (a) observes, "The rule stated in this Section represents a somewhat broader liability than the rules stated as to the liability for pecuniary loss resulting from negligent misrepresentation, stated in § 552 ..." Comment (b) notes that the rule finds particular application when part of the speaker's business or profession is to give information on which the safety of the recipient or a third person depends, but is "not, however, limited to information given in a business or professional capacity.... It extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend upon the accuracy of the information." (Italics added.)

    82

    Comment (c) observes that the rule may apply when the information given is purely gratuitous, again emphasizing the rule's amplitude. Comment (d) instructs that "negligence may consist of failure to make proper [50 Cal.3d 753] inspection or inquiry, or of failure after proper inquiry to recognize that the information given is not accurate." Comment (e) points out that "[i]t is ... not enough that the actor has correctly ascertained the facts on which his information is to be based and has exercised reasonable competence in judging the effect of such facts. He must also exercise reasonable care to bring to the understanding of the recipient of the information the knowledge which he has so acquired." And finally, comment (f) incorporates comments (c) and (d) to section 310, which stress that the speaker's liability extends to all those foreseeably endangered, not solely the recipient, and covers all foreseeable damages, not simply the harm resulting from the conduct the misrepresentation was intended to influence. In light of the comments, I am confident the members of the American Law Institute would be surprised to learn that section 311 is being used to justify a narrower basis for liability than the tort of negligence.

    83

    In his concurring opinion, the Chief Justice joins in the majority's view that under section 311 a plaintiff must plead and prove his "reasonable reliance" on the defendant's representation. He maintains that the numerous "venerable commentators" cited herein "misperceive the true state of the common law," and notes that "each of the ... cases [they rely on] in which recovery was allowed either recognized the plaintiff's reasonable reliance, or such reliance was clear from the facts." (Ante, at p. 788 of 268 Cal.Rptr., at p. 969 of 789 P.2d.) This misses the point. The issue is not whether the reasonableness of plaintiff's reliance is relevant, but whether plaintiff or defendant bears the burden of pleading and proof on the matter. Certainly nothing on the face of section 311 purports to alter the common law rule that the reasonableness of a plaintiff's conduct is examined under the doctrines of contributory or comparative negligence. The concurring opinion's reliance on Webb v. Cerasoli (N.Y.1949) 275 App.Div. 45, 87 N.Y.S.2d 884, affd. mem. 300 N.Y. 603, 90 N.E.2d 64, and Holt v. Kolker, supra, 189 Md. 636, 57 A.2d 287, is misplaced.

    84

    In Webb, the jury awarded the plaintiff, a painter, damages for injuries sustained when he fell from a marquee while painting the home of the defendant. The defendant was held liable "in negligence" (275 A.D. at p. 46, 87 N.Y.S.2d 884) for speaking carelessly to the plaintiff's employers regarding the safety of the marquee as a place from which to work. The appellate division of the supreme court reversed the judgment. Two of the justices on the five-member panel emphasized that the defendant was "a simple householder" who expressed "an opinion" and not "a representation or assurance of a fact which the speaker presumed to know," and that the plaintiff had "much more extensive experience and possessed more knowledge" than the defendant in this area. The basis of the plurality opinion is unclear: at one point it suggests the defendant had no duty to speak carefully (id., at p. 47, 87 N.Y.S.2d 884) [50 Cal.3d 754] and at another point the author states, "I fail to see how ... plaintiff can be exonerated from contributory negligence [268 Cal.Rptr. 796] [789 P.2d 977] as a matter of law." (Id., at p. 50, 87 N.Y.S.2d 884.) The concurring Justice stressed the fact that the plaintiff had 14 years of experience as a painter and that the marquee was supported by only 2 chains. The basis of his concurrence is clear: "In my opinion plaintiff was guilty of contributory negligence as a matter of law." (At p. 51, 87 N.Y.S.2d 884 (conc. opn. of Foster, P.J.).) The dissenting justices concluded, "Having invited the plaintiff to work in a place of danger, the defendants must bear the consequences." (Ibid. (disn. opn. of Deyo, J.).)

    85

    In Holt, a landlord hired two plumbers to install a toilet on a porch extending from the plaintiff's home. Before the work was begun the landlord assured the plaintiff that she could safely use the porch during the repairs, and when the plaintiff asked one of the plumbers if she could safely walk on the porch while he was installing a pipe, he replied, "Well, if it holds a man like me, it will hold a little woman like you." Shortly after the plumbers completed the job, the plaintiff sustained injuries when the porch floor collapsed beneath her. The court affirmed a judgment on directed verdict for defendant plumber. "In this case it is clear that the plumber was not under a duty to plaintiff growing out of any previous relation to plaintiff or the property, or for having any special knowledge as to the condition of the porch. At the most his statement before the work was begun was a mere concurrence in the landlord's statement.... [T]he alleged statements of [the plumbers] were such casual expressions of opinion as plaintiff was not entitled to rely upon under the circumstances." (Id. 189 Md. at p. 640, 57 A.2d 287.)

    86

    Neither of these cases, four decades old, stands for the proposition that a plaintiff must plead and prove reasonable reliance.[8] Indeed, in Webb three justices (the two dissenting justices and the concurring justice) concluded that the defendant had a duty to speak carefully, while the concurring justice clearly stated, and the plurality suggested, that what precluded plaintiff's recovery was his contributory negligence. I submit that Webb's treatment of the contributory negligence issue is entirely consistent with the [50 Cal.3d 755] historical analysis set forth herein; it certainly provides no support for the majority's view. In short, the majority fail to cite a single case in which a court has held that the plaintiff bears the burden of pleading and proving the reasonableness of his reliance on a defendant's misrepresentation. As I will show, numerous courts both before and after the Second Restatement have treated a plaintiff's reasonableness, or rather an alleged lack thereof, as a matter for defendant to plead and prove under the doctrines of contributory or comparative negligence.

    87
    IV
    88

    Michael J., Bastian and Connelly were reviewed at the pleading stage, after defendants had successfully demurred; nevertheless, none of the courts required plaintiffs to plead, as the majority do today, that they reasonably relied on the defendants' misrepresentations.[9] Without question, a [268 Cal.Rptr. 797] [789 P.2d 978] plaintiff who suffers physical injuries as a result of a defendant's misrepresentation must allege sufficient facts to show that he relied on those misrepresentations. Without such facts, there is no showing of causation, an essential element of a cause of action for negligence. The majority, however, engraft a requirement that plaintiff plead and prove that he reasonably relied on defendant's misrepresentation, a requirement that is not supported by any of the cases cited (see ante, at p. 784, fn. 7 of 268 Cal.Rptr., at p. 965, fn. 7 of 789 P.2d) and is, as explained below, contrary to well-established precedent.

    89

    That reasonable reliance is not an element in plaintiff's cause of action is clear: as in any cause of action for negligence, the reasonableness of a plaintiff's conduct is considered, if at all, under the doctrine of contributory or comparative negligence. In Seagraves v. ABCO Manufacturing Co. (1968) 118 Ga.App. 414, 164 S.E.2d 242, the plaintiff, a welder for 18 years, was injured when he attempted to strike an arch to a tank containing inflammable liquid, in reliance on the assurance of defendant's president that the tank had been "cleaned out." The court of appeal acknowledged there was uncontradicted testimony that if the plaintiff had taken safety precautions customary in the welding industry the explosion would not have occurred. It nevertheless reversed the judgment for defendant on directed verdict. It noted that Georgia follows the doctrine of comparative negligence, not contributory negligence, and explained that "[p]laintiff's actions were to be measured by the standard of a reasonably prudent man; [50 Cal.3d 756] by that standard he was not necessarily required to follow the safest course of conduct. Where the duty is that of ordinary care, one is not negligent (or contributorily negligent) merely because of failure to exercise that degree of care which would have absolutely prevented injury." (Id. 164 S.E.2d at pp. 245-246.) The court concluded, "It is plain that it was a question for the jury whether plaintiff should have anticipated the presence of the inflammable substance in the tank and the danger of welding it in that condition. One who relies on representations of another and fails to take precautions for his own safety is not guilty of contributory negligence if a reasonable man would have relied on the representations under the same circumstances." (Id. at p. 246.)

    90

    In Freeman v. United States (6th Cir.1975) 509 F.2d 626, parachutists died and were injured when an air traffic controller negligently informed the pilot that the aircraft was near its target when in fact it was over Lake Erie. The trial court found that the parachutists were not contributorily negligent because they had no reason to suspect that the jump master would signal them to jump into solid cloud cover and because they had no reasonable means of making an independent observation of the cloud conditions below the plane. (Id. at p. 632.) The court of appeals affirmed.

    91

    In Robb v. Gylock Corporation (1956) 384 Pa. 209, 120 A.2d 174, a truck driver relied on representations by defendant's employee that carboys, which actually contained sulfuric acid, were empty. The plaintiff had noticed the carboys were wet and heavier than usual, but the court rejected the defendant's contention that the plaintiff was contributorily negligent as a matter of law because he failed to make his own investigation. It noted that the plaintiff twice inquired whether the carboys were empty, and held that the plaintiff's "failure to investigate further was not contributory negligence as a matter of law, and the question was properly left to the jury." (Id. 120 A.2d at p. 175.)

    92

    In Virginia Dare Stores, Inc. v. Schuman (1938) 175 Md. 287, 1 A.2d 897, a cleaning company employee relied on a store manager's representation that it was safe to stand on the molding of a dress case to reach the walls he was to wash. The court held that "the question of contributory negligence on the part of the [plaintiff] was one for the jury's determination." (Id 1 A.2d at p. 902.)

    93

    In Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co. (4th Cir.1915) 226 Fed. 169, a workman recovered a judgment [268 Cal.Rptr. 798] [789 P.2d 979] against his employer, a steel company, after he sustained injuries when a pier on which he was working collapsed. The steel company then sued a bridge company for negligence, alleging that the steel company's foreman relied on a representation by the bridge company's engineer that the pier would be safe. The court [50 Cal.3d 757] reversed a judgment for the steel company on directed verdict, concluding that "there was such evidence of contributory negligence on the part of the plaintiff as to require that issue to be submitted to the jury." (Id. at p. 172.)

    94

    As in Michael J., Bastian and Connelly, the plaintiffs in these cases suffered physical harm outside the context of commercial transactions; their causes of action were for negligence, not negligent misrepresentation. As in this case, it is the allegedly negligent defendant who should bear the burden of proving that plaintiff's reliance was unreasonable.

    95

    By contrast, comparative negligence is not a defense to the tort of negligent misrepresentation under California law. In Carroll v. Gava (1979) 98 Cal.App.3d 892, 159 Cal.Rptr. 778, the Gavas sold a mobilehome park site to the Carrolls, representing that it was zoned for mobilehomes. The Carrolls later sold the site and were sued by the buyer when it was discovered the site was not zoned for mobilehomes. The Carrolls then cross-complained against the Gavas for negligent misrepresentation, and recovered damages for their pecuniary losses. The Court of Appeal rejected the Gavas' contention that comparative negligence should be applied to defeat the damage award. "The concept [of comparative fault] has no place in the context of ordinary business transactions. The modern law of misrepresentation evolved from the 'action on the case of deceit' in business transactions. Business ethics justify reliance upon the accuracy of information imparted in buying and selling, and the risk of falsity is on the one who makes a representation. This straightforward approach provides an essential predictability to parties in the multitude of everyday exchanges; application of comparative fault principles, designed to mitigate the often catastrophic consequences of personal injury, would only create unnecessary confusion and complexity in such transactions." (Id. at p. 897, 159 Cal.Rptr. 778, citations omitted; see also 3 Levy, et al., Cal. Torts (1989) Business Torts, § 40.11, p. 46 ["the element of justifiable reliance ... seems to take the place of a defense of contributory negligence"]; 1 Lee & Lindahl, Modern Tort Law (1988) § 10.21, p. 298 ["contributory negligence is not a defense where misrepresentation, fraud or deceit is the basis of the action"].)

    96

    In short, the majority opinion reintroduces confusion into an area of law that courts and commentators have endeavored to clarify. These authorities are virtually unanimous in support of the proposition that negligent misrepresentations resulting in physical injury give rise to a cause of action for negligence, not negligent misrepresentation. Under standard pleading rules, the complaint sufficiently alleges that Morales relied on Ybarra's statements. Fortunately, the majority's error will not have significant ramifications in this case because plaintiffs can easily amend the complaint; [50 Cal.3d 758] it can only be hoped, however, that the bench and bar will not be misled in other areas such as the treatment of comparative negligence.[10]

    97
    [268 Cal.Rptr. 799] [789 P.2d 980] V
    98

    I would reverse the judgment of the Court of Appeal dismissing plaintiffs' first cause of action.

    99

    The Court of Appeal in this case properly recognized that the general rule of negligence in California is that a person is liable "not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person." (Civ.Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 111-112, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland ).) In Rowland we held that "[a] departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id. at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.)

    100

    The Court of Appeal, after examining three of the seven factors identified in Rowland, concluded that Ybarra should not be held liable. After analyzing the Rowland factors, I conclude that at least six weigh in plaintiffs' favor and do not warrant a departure from the fundamental principle that every person is liable for injuries occasioned by his failure to use ordinary care. I will review these factors seriatim, beginning with foreseeability.

    101

    Defendants assert in essence that Morales had no reasonable basis to rely on Ybarra's advice because she more than anyone knew how dangerous [50 Cal.3d 759] Johnson could be. The argument is flawed in two respects. First, "foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct. One may be held accountable for creating even the risk of a slight possibility of injury if a reasonably prudent [person] would not do so." (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57, 192 Cal.Rptr. 857, 665 P.2d 947, citations and internal quotation marks omitted.) Even if we assume that Morales knew Johnson had killed his wife, there is some possibility that Ybarra's "advice" would have an effect on how she viewed her current relationship with Johnson and what steps, if any, she should take to protect herself from him. A reasonable person in Ybarra's place would take account of this risk in guiding his conduct.

    102

    Second, while we know that Morales realized Johnson had been dangerous, unless we are prepared to conclude that no reasonable person charged with such knowledge would be influenced by statements of the perpetrator's parole officer, we cannot hold that Morales's injuries were unforeseeable as a matter of law. It is well settled that unless there is no room for a reasonable difference of opinion, foreseeability of harm is a question of fact for a jury. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1063, 232 Cal.Rptr. 528, 728 P.2d 1163; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 126, 211 Cal.Rptr. 356, 695 P.2d 653; Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56, 192 Cal.Rptr. 857, 665 P.2d 947; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Vandermost v. Alpha Beta Co. (1985) 164 Cal.App.3d 771, 779, 210 Cal.Rptr. 613; Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 577, 207 Cal.Rptr. 853; Myers v. Quesenberry, (1983) 144 Cal.App.3d 888, 892, 193 Cal.Rptr. 733.) Ybarra cannot now rely on Morales's fear--the very fear that his reassuring words are alleged to have dispelled.

    103

    The second Rowland factor, the degree of certainty that the plaintiff suffered injury, was not addressed by the Court of [268 Cal.Rptr. 800] [789 P.2d 981] Appeal. Its role is usually confined to cases of negligent infliction of emotional distress and, in such cases, is generally a question for the jury. In this case, plaintiffs, the now-motherless children of Morales, have certainly suffered injury.

    104

    The third Rowland factor, the causal connection between the defendant's conduct and the injury suffered, is a closer question. Concluding the connection in this case was too nebulous as a matter of law to support liability, the Court of Appeal reasoned, "The weakness of the connection between Ybarra's bad advice and Morales's death is illustrated by the difficulty in showing concretely how Ybarra's act resulted in the murder. Plaintiffs do not say that Morales followed Ybarra's advice in any way, as by reconciling [50 Cal.3d 760] with Johnson, resuming the relationship, opening the door to him when she would not otherwise have done so, or in any way making herself more accessible to him because Ybarra told her she had nothing to fear.... [The complaint] fails to assert any course of action upon which she might have embarked to protect herself, nor any precaution she did not take, because of Ybarra's outrageous advice.... The frightening reality is that for one in Morales's position there frequently is nothing she can do to protect herself."

    105

    I am unwilling to subscribe to the fatalistic view that as a matter of law women in Morales's position can do nothing to protect themselves. To the contrary, among numerous possibilities she could have stayed at a women's shelter or with relatives, improved her home security, alerted her neighbors and the police, moved to a distant location, or applied for a temporary restraining order. Moreover, the Court of Appeal holds plaintiffs to too high a standard of pleading in requiring them to "show[ ] concretely how Ybarra's act resulted in the murder." Rather, " 'it is the settled rule in California that negligence and proximate cause may be simply set forth.' " (4 Witkin, Cal.Procedure, Pleading (3d ed. 1985) § 562, at p. 600, quoting Roberts v. Griffith Co. (1929) 100 Cal.App. 456, 461, 280 P. 199, italics added in Witkin.) It is not surprising therefore that defendants cite no case that requires a plaintiff to plead what specific steps the victim would have taken had the defendant not acted negligently. Under the established rules of negligence that require liberal construction of pleadings, the allegation that Morales failed to take steps to protect herself as a proximate result of Ybarra's statements is sufficient to withstand defendants' demurrer.

    106

    The fourth Rowland factor, the moral blame attached to the defendant's conduct, weighs heavily in plaintiffs' favor. It is difficult to conceive an acceptable excuse for Ybarra's statements to Morales. One can surmise he believed that if he could convince her to return to Johnson, she would be a stabilizing influence on him and help him lead a productive and law-abiding life. Perhaps he was motivated by an ill will toward her and his entreaties were made with a reckless disregard for their truth or falsity. From the removed perspective of an appellate court, with only the cold record of the pretrial proceedings before us, I would not presume to determine the factors that motivated Ybarra. It can assuredly be said, however, that Ybarra's conduct itself was, in the words of the Court of Appeal, "clearly outrageous."

    107

    The fifth Rowland factor is the policy of preventing future harm. We have repeatedly refused to impose a duty to warn potential victims based on a law enforcement officer's mere knowledge that there is some danger. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 208-209, 185 Cal.Rptr. [50 Cal.3d 761] 252, 649 P.2d 894; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 758, 167 Cal.Rptr. 70, 614 P.2d 728; Hayes v. State of California (1974) 11 Cal.3d 469, 473, 113 Cal.Rptr. 599, 521 P.2d 855.) "Imposition of a duty to warn [a victim], premised on the theory that she was a potential victim of a potential assailant, necessarily implies a general duty to warn other potential victims in the vicinity.... [O]ur past decisions teach that it is inappropriate to impose such a duty--which may paralyze a neighborhood--under pain of tort liability." (Davidson v. City of Westminster, supra, 32 Cal.3d at [268 Cal.Rptr. 801] [789 P.2d 982] pp. 208-209, 185 Cal.Rptr. 252, 649 P.2d 894, citations omitted.) But to impose liability for Ybarra's statements, on the theory that a parole officer's misrepresentation of the risk of danger posed by a parolee to a specifically identified victim could cause foreseeable harm, would not hamper the efforts of parole officers to effectively perform their duties. Indeed, the important policy of preventing future harm is significantly furthered by assessing liability for injuries caused by affirmative misrepresentations.

    108

    The Court of Appeal's analysis of the sixth Rowland factor, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care, is puzzling. On the basis of its unwarranted assumption that "Nothing short of confining Johnson could probably have prevented this death," the Court of Appeal concluded that "the decision to leave [Johnson] at large is not actionable by virtue of the immunity statutes." Again, the Court of Appeal misconceives the premise of liability. By failing to appreciate that plaintiffs' action is based on the affirmative misconduct of Ybarra which allegedly increased the danger faced by Morales, and not on Ybarra's failure to confine Johnson, the Court of Appeal in effect creates immunity where the Legislature created none.

    109

    Having concluded that six of the seven Rowland factors examined above militate in plaintiffs' favor, I am of the view that the final Rowland factor, the availability, cost and prevalence of insurance for the risk involved, even if it weighed heavily in defendants' favor, could not support a departure from the fundamental principle that all persons are responsible for injuries caused by their failure to exercise due care.

    110
    VI
    111

    I reluctantly concur in the majority's affirmance of the judgment in favor of defendants on plaintiffs' cause of action under 42 United States Code section 1983. In DeShaney v. Winnebago County Dept. of Social Services (1989) --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249, after the defendant department of social services received reports that an infant, Joshua, was being abused, it obtained a court order placing him in the temporary custody of a hospital. Three days later, it returned Joshua to the custody of his [50 Cal.3d 762] father, who beat him so severely that he fell into a life-threatening coma. The court affirmed summary judgment in favor of the defendants, holding that "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf --through incarceration, institutionalization, or other similar restraint of personal liberty--which is the 'deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." (Id. 109 S.Ct. at p. 1006, italics added.)

    112

    If the affirmative act of placing a three-year-old boy in the custody of his abusive father does not "restrain" the boy's freedom "to act on his own behalf," the allegations of Ybarra's misconduct a fortiori do not meet this stringent standard. Even if Ybarra's entreaties caused Morales, a competent adult, to forgo precautions she would otherwise have taken, we cannot say that Ybarra thereby "restrained" her freedom to act on her own behalf. Under the high standard set by the Supreme Court in DeShaney, I agree that the complaint fails to state a cause of action under 42 United States Code section 1983.

    113

    In other respects I would reverse the Court of Appeal's decision.

    114

    BROUSSARD and WHITE, JJ.[*] , concur.

    115

    [1] Two additional defendants are not parties to this appeal. These are the County of Santa Clara and the Santa Clara Valley Medical Center, a county hospital where Johnson was temporarily confined for psychiatric observation. Plaintiffs allege that the County and its hospital are liable because the hospital's staff failed to inform Morales of threats that Johnson made against her during his confinement.

    116

    Plaintiffs have also alleged that the State is liable because a psychologist in its employ failed to warn Morales of threats by Johnson. The superior court overruled the State's demurrer to this cause of action, and this ruling is not before us.

    117

    [2] Plaintiffs do not specifically argue that Ybarra's refusal to provide such information was tortious. Indeed, state law made it a crime for Ybarra to disclose information about Johnson's criminal record. (See Pen.Code, §§ 11105.1 [state summary criminal history information; persons entitled to receive], 11142 [authorized person furnishing record or information to unauthorized person; misdemeanor].)

    118

    [3] The parties have informed us that the entire telephone conversation between Ybarra and Morales was tape-recorded. However, plaintiffs have included only a few statements from the conversation in their complaint.

    119

    [4] In their first amended complaint, plaintiffs clearly distinguish between the liability of Ybarra, which is based on statements, and that of the medical personnel, which is based on a failure to act: "As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson." (Emphasis added.)

    120

    Plaintiffs may have attempted to state a cause of action for failure to act based upon the allegation that Ybarra failed to serve a temporary restraining order on Johnson or arrest him. However, neither allegation helps plaintiffs to state a cause of action. This is because plaintiffs do not allege that an order was actually furnished to Ybarra for service, and because Ybarra enjoys absolute statutory immunity for the failure to arrest Johnson. (Gov.Code, § 846; City of Sunnyvale v. Superior Court (1988) 203 Cal.App.3d 839, 842, 250 Cal.Rptr. 214; cf. Davidson v. City of Westminster (1982) 32 Cal.3d 197, 205-206, fn. 4, 185 Cal.Rptr. 252, 649 P.2d 894.) At oral argument, plaintiffs characterized these allegations as relevant to the existence of a special relationship rather than as independent grounds of liability.

    121

    [5] Civil Code, section 1710, subdivision 2, is often cited as the statutory basis in California for the negligent misrepresentation cause of action. (See, e.g., Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376, 193 Cal.Rptr. 422; 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 721, at p. 819.) The section defines one form of "deceit" as: "[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true...."

    122

    [6] Even in cases involving physical harm, however, "[t]he fact that the information is gratuitous may ... affect the reasonableness of the other's reliance upon it in taking action." (Rest.2d Torts, supra, § 311, com. c, at p. 107.) For example, "[t]here may be no reasonable justification for taking the word of a casual bystander, who does not purport to have any special information or any interest in the matter, as to the safety of a bridge or a scaffold, where the plaintiff would be fully justified in accepting the statement of one who purports to have special knowledge of the matter, or special reliability, even though the plaintiff knows that he is receiving gratuitous advice." (Ibid.)

    123

    [7] A defendant is liable under the theory set out in Restatement Second of Torts, supra, section 311 only "for physical harm caused by action taken by the other in reasonable reliance upon such information." (Rest.2d Torts, supra, § 311, subd. (1), emphasis added.) Under section 311, reliance is an element of the cause of action which must be both pled (Dyson v. General Motors Corp. (E.D.Pa.1969) 298 F.Supp. 1064, 1066-1067; Howard v. Poseidon Pools, Inc. (Sup.Ct.1986) 133 Misc.2d 50, 506 N.Y.S.2d 523, 525, affd. in part and revd. in part on other grounds (App.Div.1987) 134 A.D.2d 926, 522 N.Y.S.2d 388) and proved (Kommanvittselkapet Harwi (R. Wigand) v. United States (3d Cir.1972) 467 F.2d 456, 459, cert den. (1973) 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391; Baylie v. Swift & Co. (1975) 27 Ill.App.3d 1031, 327 N.E.2d 438, 449). A plaintiff must also plead reliance if the cause of action for negligent misrepresentation involving physical harm is viewed as one under Civil Code section 1710, subdivision 2. (Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 375-376, 193 Cal.Rptr. 422.)

    124

    [8] This case also raises issues of statutory immunity, which the superior court resolved in favor of the defendants. The court should reconsider these issues in the light of any new allegations. To address these issues before plaintiffs have stated a cause of action is premature. (Davidson v. Westminster, supra, 32 Cal.3d at pp. 201-202, 185 Cal.Rptr. 252, 649 P.2d 894; see also Williams v. State of California (1983) 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 664 P.2d 137.)

    125

    For the superior court's guidance, we note that the statutory immunity from liability for misrepresentations (Gov.Code, §§ 818.8 and 822.2) does not apply to negligent misrepresentations involving a risk of physical harm. In Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, the foster mother of a youth on parole from the Youth Authority sued the state after the youth assaulted her. The plaintiff alleged, among other things, that "the parole officer had affirmatively misrepresented that the youth had no background of violence and no character traits suggesting violent actions in the future." ( Id., at p. 799, 73 Cal.Rptr. 240, 447 P.2d 352.) We held that "[t]he parole officer's conduct, whether he expressed affirmative and false representations as to the youth's character or merely remained silent on this matter, does not warrant immunity under Government Code section 818.8 as a 'misrepresentation.' " ( Id., at p. 799, 73 Cal.Rptr. 240, 447 P.2d 352, italics omitted.) We reached that conclusion because the Legislature, in enacting the immunity statute, intended to limit the immunity to cases involving misrepresentations of a financial or commercial character. (Id., at p. 800; see 2 Sen.J. (1963 Reg.Sess.) p. 1889.)

    126

    The dissenting opinion misinterprets Johnson as holding that a plaintiff cannot recover damages for physical harm in an action for negligent misrepresentation. To the contrary, we held only that the immunity statute did not apply to misrepresentations causing physical harm; we expressly held open the possibility that the plaintiff would be able to state a cause of action based upon the parole officer's misrepresentation. To quote the opinion, "however we may choose to characterize the parole officer's failure to give adequate warnings to plaintiff, section 818.8 does not apply to this case." (Id., at p. 800, 73 Cal.Rptr. 240, 447 P.2d 352.) Indeed, there would have been no need to address the immunity statute's applicability unless it was anticipated that the plaintiff would state a cause of action based upon a misrepresentation. It should also be noted that the dissent's interpretation of Johnson as limiting damages recoverable in an action for negligent misrepresentation conflicts with Civil Code section 3333, which permits the plaintiff in a tort action to recover "the amount which will compensate for all the detriment proximately caused thereby...." (Emphasis added.)

    127

    [9] Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."

    128

    [10] Plaintiffs theorize that Ybarra's bad advice restricted Morales's psychological freedom to protect herself. But this speculative theory of causation is far too attenuated to support liability under section 1983. Federal law, not state law, determines the closeness of the causal connection that must exist between state action and the alleged deprivation. A "remote" causal connection does not suffice. (Martinez v. California (1980) 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481.) The Seventh Circuit has made the point more forcefully: "The states are free in the administration of their own tort law to attenuate the requirement of causation as far as they want, even to the point ... of eliminating it entirely; but deprivation in the constitutional sense requires more than a minimal or fictitous causal connection between the action of the state and the injury of the plaintiff." (DeShaney v. Winnebago County DSS (7th Cir.1987) 812 F.2d 298, 302-303, affd. (1989) 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249.)

    129

    [11] In addition, Wood was argued before the Supreme Court's decision in DeShaney, which received only a passing reference in the Court of Appeals's opinion. (Wood, supra, 879 F.2d at p. 590.) The dissent in Wood argues that the majority opinion does not reflect DeShaney 's recent change in the law. (Wood, supra, 879 F.2d at pp. 597-600 (Carroll, J., dis.).)

    130

    __________

    131

    [1] Moreover, nothing in the dissent's analysis of Holt, supra, 189 Md. 636, 57 A.2d 287, or Webb, supra, 275 App.Div. 45, 87 N.Y.S.2d 884, convinces me that the drafters of the second Restatment erred in their interpretation or characterization of those decisions.

    132

    The dissent concedes, as it must, that the court in Holt, supra, 189 Md. 636, 57 A.2d 287, affirmed a directed verdict for the defendants because plaintiff failed to state a prima facie case of reasonable reliance. The appellate court concluded, "the alleged statements of [defendants] were such casual expressions of opinion as plaintiff was not entitled to rely upon under the circumstances." (Id., at p. 640, 57 A.2d 287.)

    133

    Through selective quotations from Webb, supra, 275 App.Div. 45, 87 N.Y.S.2d 884, the dissent suggests the plurality opinion in that case did not view the plaintiff's reasonable reliance as an element of his prima facie case. I believe, consistently with the apparent interpretation of the drafters of the second Restatement, that the Webb opinion did view reasonable reliance as an element of the plaintiff's case. After posing the question, "what then are the essential elements" for an action based on "negligent language?" (275 App.Div. at p. 49, 90 N.E.2d 64), the court listed four elements, the last of which was: "the relationship of the parties arising from contract or otherwise must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information has a duty to give it with care." (Id., at p. 50, 90 N.E.2d 64.) The opinion concluded, "Under these rules I fail to see how the relationship of the plaintiff and the defendants was such that in morals and good conscience the former had any right to rely on what he is shown to have overheard [defendant] to say, as information of a fact for the guidance of his conduct which brought him injury, or how plaintiff can be exonerated from contributory negligence as a matter of law." (Ibid.)

    134

    [2] As the majority notes (ante, p. 782, fn. 4 of 268 Cal.Rptr., p. ----, fn. 4 of --- P.2d), plaintiffs have not pleaded an action based on failure to warn, and we need not decide today whether such an action would be appropriate.

    135

    __________

    136

    [1] Plaintiffs will add the underscored words: "as a proximate result of [Ybarra's misstatements] to decedent, and in reasonable reliance thereon, [Morales] failed to take steps to protect herself from Johnson."

    137

    [2] The complaint does not allege that a temporary restraining order was actually applied for or issued.

    138

    [3] Government Code section 818.8 provides, "A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional."

    139

    [4] Another case (this without governmental defendants) standing for the proposition that misrepresentations outside the commercial and financial context are treated under the rules of general negligence is Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 169 Cal.Rptr. 282. In that case, several girls allegedly were sexually abused by a neighbor. The neighbor's wife encouraged the girls' parents to allow the children to swim at her home under her husband's sole supervision by assuring the parents " 'that her husband would be there and the children would be perfectly safe.' " (Id. at p. 209, 169 Cal.Rptr. 282.) She did so despite her knowledge that he intended to commit sexual acts on the girls. The plaintiffs sued the husband for assault and battery and the wife for negligence. In reversing a judgment on demurrer in favor of the wife, the Court of Appeal held that the wife, who by her own acts increased the risk of harm to the children, could be found to have unreasonably exposed the children to the harm perpetrated by her husband.

    140

    [5] The majority purport to follow Johnson 's holding that section 818.8 immunity does not apply to misrepresentations outside the financial or commercial context, but inexplicably fail or refuse to acknowledge the rationale underlying the holding. In as clear terms as possible, Johnson stated, " 'misrepresentation,' as a tort distinct from the general milieu of negligent and intentional wrongs, applies to intereferences with financial or commercial interest." (69 Cal.2d at p. 800, 73 Cal.Rptr. 240, 447 P.2d 352.) Stated another way, misrepresentations outside the financial or commercial context are not actionable under the distinct tort of negligent misrepresentation; such nonfinancial misrepresentations are actionable under the general rules of "negligent and intentional wrongs."

    141

    [6] "It is not clear whether the court [in Holt v. Kolker (1948) 189 Md. 636, 57 A.2d 287] is considering negligent misrepresentation as part of the law of negligence or under the heading of fraud and deceit, as in one breath it speaks of lack of duty owing the plaintiff by the defendant and in the next it discusses justifiable reliance in language sounding in an action for fraud and deceit.... This is not startling in light of the diversity of opinion among writers and the courts as to both the extent and theory of liability for negligent misrepresentations which result in injury to person or property." (Note (1948) 22 So.Cal.L.Rev. 77, 78.)

    142

    [7] Negligent misrepresentation "is a form of deceit without ... the element of scienter." (Yanase v. Automobile Club of So. Cal. (1989) 212 Cal.App.3d 468, 473, 260 Cal.Rptr. 513.)

    143

    [8] The Chief Justice, in his concurrence, quotes out of context from Tentative Draft No. 5 of the second Restatement to give the impression that the drafters unambiguously support his interpretation of Holt and Webb. Ante, at p. 788 of 268 Cal.Rptr., at p. 969 of 789 P.2d. Note (4), from which the quotation is taken, addresses the issue of whether liability under section 311 should extend to "information given gratuitously, and not in the course of an activity in which the actor has any interest...." The drafters cite Holt and Webb to make clear that these cases did not hold to the contrary.

    144

    Thus, the drafters were not concerned in note (4) with a nuanced discussion of justifiable reliance, nor in clarifying whether this element should appear in the plaintiff's or defendant's case. Rather, they sought to establish the quite unrelated principle that section 311 liability does not depend on a financial relationship between plaintiff and defendant. Note (4) is dubious authority in support of any other proposition.

    145

    [9] Much of the majority's discussion of reasonable reliance echoes the rejected position of the dissenting superior court judge sitting temporarily in Connelly: "it is to be noted that the direct cause of the damage alleged was the rise in the waters of the river. The information given had no causal connection with that fact. As the water level rose inch by inch, [the plaintiff] had as full knowledge of what was happening as did [the defendants]." (3 Cal.App.3d at p. 761, 84 Cal.Rptr. 257 (dis. opn. of David, J. pro tem.).)

    146

    [789 P.2d 980] FN10. The concurring opinion suggests that legitimate jurisprudential and policy reasons exist to require a plaintiff plead and prove reasonable reliance. It asserts, "the plaintiff will often be in the best position, and have the final opportunity, to avoid any risk of harm. He must ultimately decide, based on his own assessment of the circumstances known to him, whether to act on the representations of the defendant." (Ante, at p. 789 of 268 Cal.Rptr., at p. ---- of --- P.2d.) Whatever jurisprudential value the rule has in general, it seems singularly unfair to require plaintiffs in this case to plead the specific circumstances known to their deceased mother. Even as a general matter, the reasoning is unsound. It is what Prosser and Keeton describe as "something resembling billiard-parlor reverse English," by which a few courts "have even purported to recognize a 'last clear chance' doctrine in favor of the defendant, to bar the plaintiff's recovery." (Op. cit. supra, § 66, at p. 464.) Moreover, the reasoning reminds the bench and bar of the harsh "all-or-nothing" approach of contributory negligence this court rejected in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.

    147

    [*] Presiding Justice of the Court of Appeals, 1st District, Division 3, sitting under assignment by the Chairperson of the Judicial Council.

  • 5 Florence v. Goldberg--"The Police-Manned Crosswalk"

    Should government agencies pay when a plaintiff is injured by the agency’s failure to provide services to a specific group of citizens?

    Notes: The plaintiff is a six-year-old child who was struck by a taxicab while crossing the street near his school. The infant’s mother had allowed him to walk to and from school without an escort because she had previously observed the daily presence of a crossing guard. However, on the day of the incident, the regularly assigned crossing guard was ill. Furthermore, the police department failed to follow their standard operating procedure when crossing guards are unavailable; the department neither assigned a substitute patrolman nor notified the school principal of of the absence of a crossing guard.
    1
    404 N.Y.S.2d 583
    2
    44 N.Y.2d 189, 375 N.E.2d 763
    3
    Carol FLORENCE, as Mother and Natural Guardian of Darryle L. Davis, an Infant, et al., Respondents, 
    v.
    Meyer GOLDBERG, Defendant, and Lilly Transportation Corp., et al., Appellants.
    4
    Court of Appeals of New York.
    5
    April 4, 1978.
    7

    [404 N.Y.S.2d 584] W. Bernard Richland, Corp. Counsel, New York City (Bernard Burstein and L. Kevin Sheridan, New York City, of counsel), for City of New York, appellant.

    8

    Seymour Madow, Aaron J. Broder and Ann Abbott, New York City, for respondents.

    9
    OPINION OF THE COURT
    10
    JASEN, Judge.
    11

    This appeal raises the issue whether a municipality may be held liable for injuries suffered by an infant struck by an automobile while attempting to negotiate a school crossing where the municipality's police department, having voluntarily assumed a duty to supervise school crossings an assumption upon which the infant's parent relied negligently omitted to station a guard at one of the designated crossings.

    12

    On November 14, 1967, Darryle Davis, a 6 1/2-year-old infant, was struck by a taxicab, the impact of which resulted in the infliction of severe brain damage to the infant. At the time of the injury, the infant plaintiff was a first-grade student at Public School 191, located on Park Place between Ralph and Buffalo Avenues in Brooklyn. Although he resided on Park Place, only [404 N.Y.S.2d 585] one block away from the school, the infant plaintiff was required to cross Ralph Avenue to attend school.

    13

    Prior to the occurrence of the accident resulting in the infant's injury, a civilian school crossing guard had been assigned regularly to cover the intersection of Park Place and Ralph Avenue, a busy two-way street. For the first two weeks of class, a period throughout which the infant's mother accompanied her son to and from school, a crossing guard had been stationed at the intersection of Park Place and Ralph Avenue. Having witnessed the daily presence of a crossing guard at this intersection, the infant's mother, who accepted employment two weeks after her son started class, felt confident that she need not arrange for someone to provide a similar service for her child.

    14

    Tragically, however, on the day in question no crossing guard was stationed at the intersection of Park Place and Ralph Avenue. The regularly assigned crossing guard, having felt ill that day, notified the 77th precinct at 7:30 a. m. that she would not be able to report for duty. Police department regulations provided that a crossing guard unable to report for duty "notify the (police precinct) desk officer sufficiently in advance so that other arrangements (could) be made for covering the crossing." (Rules and Regulations of New York City Police Dept., ch. 23, § 12.1.) Patrolmen and superior officers were also required to notify the desk officer of the absence of a crossing guard at a covered intersection. Upon receipt of this information, the desk officer was required to "assign a patrolman to cover the crossing." (Id., ch. 23, § 12.3.) Departmental regulations provided, however, that if all school crossings could not be covered, those intersections considered most dangerous were to be covered. (Id., ch. 15, § 34.1.) Significantly, where more urgent police duty mandated a patrolman's presence elsewhere, department regulations required him to notify the school principal so that the latter could make arrangements to provide for the safety of the children. (Id., ch. 15, § 35.0.)

    15

    Upon receiving notification of the crossing guard's unavailability for duty, the police department neither assigned a patrolman to substitute for the crossing guard nor notified the school principal of the absence of a crossing guard at the Park Place and Ralph Avenue intersection. It was shortly after 11:45 a. m., while the infant plaintiff was returning home from school, that he was struck by a taxicab while attempting to cross this intersection.

    16

    The infant's mother, as natural guardian, commenced this action against New York City, Lilly Transportation Corp., the owner of the taxicab, and Meyer Goldberg, the operator of the vehicle, seeking damages for the personal injuries suffered by the infant. She also sought, in a derivative cause of action, damages for loss of the infant's services and medical expenses. At trial, the action was discontinued against Goldberg.

    17

    The jury returned a verdict against Lilly and New York City, apportioning the liability between them in the ratio of 25% against Lilly and 75% against the city. On appeal, the Appellate Division affirmed the judgment of liability, but ordered a new trial on the issue of damages, holding that the award had been tainted by plaintiffs' improper use of medical textbooks at trial.

    18

    On retrial of the issue of damages, the jury awarded the infant $500,000 and his mother $270,000. On appeal, the Appellate Division, holding the award to the infant's mother excessive, ordered a new trial on the issue of damages unless plaintiff agreed to accept a reduction to $125,000. Plaintiff having so stipulated, the Appellate Division affirmed the judgment of the trial court.

    19

    On appeal to this court, the City of New York contends that a municipality acting in its governmental capacity to protect the public from external hazards cannot be held liable in damages for its failure to furnish adequate protection. We hold that a municipality whose police department voluntarily [404 N.Y.S.2d 586] assumes a duty to supervise school crossings the assumption of that duty having been relied upon by parents of school children may be held liable for its negligent omission to provide a guard at a designated crossing or to notify the school principal or take other appropriate action to safeguard the children.

    20

    By its waiver of governmental immunity (Court of Claims Act, § 12-a (L.1929, ch. 467, § 1), now § 8), the State assumed liability for its conduct and consented to have such liability determined in accordance with the same rules of law applicable to individuals and corporations. As a concomitant of the State's waiver of immunity, the governmental subdivisions of the State its counties, cities, towns and villages formerly sheltered under the protective cloak of the State's immunity (Murtha v. New York Homeopathic Med. Coll. & Flower Hosp., 228 N.Y. 183, 185, 126 N.E. 722), also became "answerable equally with individuals and private corporations for wrongs of officers and employees" (Bernardine v. City of New York, 294 N.Y. 361, 365, 62 N.E.2d 604, 605; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 596, 204 N.E.2d 635, 636). As in the case of an individual or private corporation, however, a municipality's liability must be premised upon the existence and breach of a duty flowing from the municipality to the plaintiff. (Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635, supra.) Absent the existence and breach of such a duty, the abrogation of governmental immunity, in itself, affords little aid to a plaintiff seeking to cast a municipality in damages.

    21

    Moreover, to sustain liability against a municipality, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of "a duty to use due care for the benefit of particular persons or classes of persons" (Motyka v. City of Amsterdam, 15 N.Y.2d at p. 139, 256 N.Y.S.2d at p. 598, 204 N.E.2d at p. 637, supra; Evers v. Westerberg, 38 A.D.2d 751, 329 N.Y.S.2d 615, affd., 32 N.Y.2d 684, 343 N.Y.S.2d 361, 296 N.E.2d 257; see generally, 18 McQuillin, Municipal Corporations, p. 126).

    22

    For example, as a general rule, a municipality's duty to furnish water to protect its residents against damage caused by fire is a duty inuring to the benefit of the public at large, rather than to the individual members of the community. (Motyka v. City of Amsterdam, 15 N.Y.2d 134, 138, 256 N.Y.S.2d 595, 596, 204 N.E.2d 635, 636, supra; Steitz v. City of Beacon, 295 N.Y. 51, 57, 64 N.E.2d 704, 707; Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 165, 159 N.E. 896, 897; La Duca v. Town of Amherst, 53 A.D.2d 1011, 386 N.Y.S.2d 269.) Similarly, a municipality cannot be held liable for failure to furnish adequate police protection. This duty, like the duty to provide protection against fire, flows only to the general public. (Riss v. City of New York, 22 N.Y.2d 579, 583, 293 N.Y.S.2d 897, 899, 240 N.E.2d 860, 861; Bass v. City of New York, 38 A.D.2d 407, 411, 330 N.Y.S.2d 569, 573, affd., 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154; Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 449, 382 N.Y.S.2d 152, 153, app. dsmd., 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388; see, generally, Comment, Municipal Tort Liability for Failure to Provide Adequate Police Protection in New York State, 39 Albany L.Rev. 599; Police Protection Governmental Liability, Ann., 46 A.L.R.3d 1084.)

    23

    Where, however, a special relationship exists between a municipality and a plaintiff creating a duty, albeit one normally inuring only to the benefit of the public at large, a municipality may be held liable for damages suffered as a consequence of its negligence. For example, a municipality possesses a special duty to provide police protection to an informer who collaborates with the police in the arrest and prosecution of a criminal. (Schuster v. City of New York, 5 N.Y.2d 75, 82-83, 180 N.Y.S.2d 265, [404 N.Y.S.2d 587] 270-271, 154 N.E.2d 534, 538-539.) Moreover, where a municipality assumes a duty to a particular person or class of persons, it must perform that duty in a nonnegligent manner, notwithstanding that absent its voluntary assumption of that duty, none would have otherwise existed. As Chief Judge Cardozo succinctly stated: "The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all." (Moch Co. v. Rensselaer Water Co., 247 N.Y. at p. 167, 159 N.E. at p. 898, supra.)

    24

    It is within this analytical framework that the issue posed on this appeal must be resolved: that is whether the City of New York, through its police department, assumed a particular duty to a special class of persons, not generally true of police control of pedestrian or vehicle traffic, and whether having assumed that duty, the city negligently omitted its performance, resulting in the infliction of physical injury to a member of the benefited class.

    25

    In this regard, there is little question that the police department voluntarily assumed a particular duty to supervise school crossings. Its departmental rules and regulations expressly provided that a crossing guard unable to report for duty advise the precinct sufficiently in advance to permit the police to make other arrangements to cover the crossing. (Rules and Regulations of New York City Police Dept., ch. 23, § 12.1.) Upon notification by a patrolman or superior officer of the absence of a crossing guard from his or her position, the precinct's desk officer was required by departmental regulations to assign a patrolman to cover the crossing. (Id., ch. 23, § 12.3.) Where more urgent police duty necessitated a patrolman's presence elsewhere, he was required to notify the precinct and the school principal so that the latter could make arrangements to safeguard the children's welfare. (Id., ch. 15, § 35.0.)

    26

    Significantly, the duty assumed by the police department was a limited one: a duty intended to benefit a special class of persons viz., children crossing designated intersections while traveling to and from school at scheduled times. Thus, the duty assumed constituted more than a general duty to provide police protection to the public at large. Having witnessed the regular performance of this special duty for a two-week period, the plaintiff infant's mother relied upon its continued performance. To borrow once more from Chief Judge Cardozo, "(i)f conduct has gone forward to such a stage that in action would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward" (Moch Co. v. Rensselaer Water Co., 247 N.Y. at p. 167, 159 N.E. at p. 898, supra ). Application of this principle to the present case leads unmistakably to the conclusion that the police department, having assumed a duty to a special class of persons, and having gone forward with performance of that duty in the past, had an obligation to continue its performance. (Cf. Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 453, 382 N.Y.S.2d 152, 156, supra; Bloom v. City of New York, 78 Misc.2d 1077, 1078-1079, 357 N.Y.S.2d 979, 980-981.) Had the police department not assumed a duty to supervise school crossings, plaintiff infant's mother would not have permitted her child to travel to and from school alone. The department's failure to perform this duty placed the infant plaintiff in greater danger than he would have been had the duty not been assumed, since the infant's mother would not have had reason to rely on the protection afforded her child and would have been required, in her absence, to arrange for someone to accompany her child to and from school.

    27

    As to whether the police department, having assumed this duty, negligently omitted its performance, the city contended at trial that sufficient patrolmen were not available to permit assignment of a patrolman [404 N.Y.S.2d 588] to cover the intersection of Park Place and Ralph Avenue. The city placed great weight upon a departmental regulation mandating that "(w)hen all school crossings cannot be covered, those considered most dangerous shall be covered." (Rules and Regulations of New York City Police Dept., ch. 15, § 34.1.) It was the city's contention that the intersection of Park Place and Ralph Avenue was not considered one of the most hazardous school crossings. Whether or not the police department negligently performed its duty to supervise school crossings is a question of fact properly left for determination by the jury. In returning a verdict against defendants, the jury resolved this question against the city.

    28

    In passing, we caution, however, that a municipality cannot be held liable solely for its failure to provide adequate public services. The extent of public services afforded by a municipality is, as a practical matter, limited by the resources of the community. Deployment of these resources remains, as it must, a legislative-executive decision which must be made without the benefit of hindsight. (Riss v. City of New York, 22 N.Y.2d at pp. 581-582, 293 N.Y.S.2d at p. 898, 240 N.E.2d at p. 861, supra; Bass v. City of New York, 38 A.D.2d 407, 417, 330 N.Y.S.2d 569, 579, affd., 32 N.Y.2d 894, 346 N.Y.S.2d 814, 300 N.E.2d 154, supra; Glick v. City of New York, 53 A.D.2d 528, 384 N.Y.S.2d 184.) Had the city established that a shortage of personnel precluded assignment of a patrolman to cover the intersection of Park Place and Ralph Avenue, notification of this contingency to the school principal or other appropriate action would have been sufficient to relieve the police department and New York City from liability for the failure to supervise the designated school crossing. To place a greater burden upon the police department would be unwarranted.

    29

    The order of the Appellate Division should be affirmed, with costs.

    30

    BREITEL, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur.

    31

    Order affirmed.

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