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 [as described in the dissenting
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 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 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.]
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.
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 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.
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.), ss 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 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 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.
Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities,
there should be a legislative determination 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).
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, s 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, s 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, s 113, subd. 3; s 121, as last
amd. by L. 1968, ch. 115)), a factor of considerable significance.
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 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.
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 most careful study of conditions and the impact of such a scheme upon
governmental operations and the public fisc (Executive Law, art. 22, s 620 et seq. (L.1966, ch. 894);
Administrative Code of City of New York, ch. 3, tit. A, s 67--3.2). And then the limitations were particular and
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).
Accordingly, the order of the Appellate Division affirming the judgment of dismissal should be affirmed.
FULD, C.J., and BURKE, SCILEPPI, BERGAN and JASEN, JJ., concur with BREITEL, JJ.
KEATING, J., dissents and votes to reverse in a separate opinion.
Order affirmed, without costs.