Pearson v County of Cattaraugus
Annotate this CaseDecided on March 7, 2005
Supreme Court, Cattaraugus County
Diana J. Pearson, Individually and as Administratrix of the Estate of Darin Pearson, Plaintiff
against
County of Cattaraugus, Defendant
62978
DANIEL F. NOVAK, ESQ.
232 Delaware Avenue, Suite 30
Buffalo, New York 14202
For the Plaintiff
EDWARD WAGNER, ESQ.
214 North Barry Street
Olean, New York 14760
Larry M. Himelein, J.
On June 22, 1998, Cattaraugus County Family Court issued a temporary order of
protection directing that Dahl Pearson stay away from his wife, Diana, and their son, Darin. The order of protection also directed Dahl Pearson to surrender any firearms in his possession. A copy of the order was apparently sent to the Cattaraugus County Sheriff's Department.
Later that day, a Cattaraugus County Deputy located Mr. Pearson, read the order of protection to him, gave him a copy, and asked Pearson for his guns. Pearson said he had gotten rid of them but also said it was none of the deputy's business where they had gone. The deputy had Pearson sign a statement stating that he no longer possessed any firearms and that he refused to provide any further information.
Mr. and Mrs. Pearson lived apart after the order of protection was issued. In July, Mrs. [*2]Pearson and Darin moved to an apartment in Salamanca. Despite the separation of his parents, Darin spent considerable time with his father, including most weekends. On October 4, 1998, Mr. Pearson inexplicitly shot and killed Darin and later killed himself. Mrs. Pearson commenced this action against Cattaraugus County, alleging that the failure to confiscate Dahl Pearson's guns caused the wrongful death of Darin. The County has moved to dismiss on the grounds that the complaint fails to state a cause of action or alternatively, has moved for summary judgment.
Because issue has been joined and the summary judgment motion includes multiple exhibits and transcripts, the court will treat both motions as one for summary judgment (see, CPLR 3211 [c]). While the motion was made more than 120 days after the note of issue was filed, under the circumstances here, including that this court was assigned to the case after the recusal of Judge Nenno, and for reasons unknown a conference was not scheduled timely, the court finds good cause to consider the merits of the motion (see, CPLR 3212 [a]).
The general rule is that municipalities are not liable for injuries that result from the failure to provide police protection (Mastroianni v. County of Suffolk, 91 NY2d 198, 668 NYS2d 542 [1997]; Cuffy v. City of New York, 69 NY2d 255, 513 NYS2d 372 [1987]). There is, however, a narrow exception to the general rule when the claim is based on a special relationship between the municipality and the plaintiff (Id., see also, Kircher v. City of Jamestown, 74 NY2d 251, 544 NYS2d 995 [1989]).
In Cuffy, the Court of Appeals identified four elements that must be established to
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demonstrate this special relationship: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (69 NY2d at 260, 513 NYS2d at 375; see also, Mastroianni, 91 NY2d at 204, 668 NYS2d at 545).
"The first two elements are satisfied by the issuance of an order of protection under the Family Court Act which provides that an order 'shall constitute authority' for an officer 'to arrest a person charged with violating the terms of such order of protection' " (Mastroianni, 91 NY2d at 204, 668 NYS2d at 545 quoting Family Court Act § 168 and Sorichetti v. City of New York, 65 NY2d at 469, 492 NYS2d 591; see also Tarnaras v. County of Nassau, 264 AD2d 390, 694 NYS2d 414 [2d Dept. 1999]). Neither of the remaining two elements are satisfied solely because an order of protection was issued (Mastroianni, 91 NY2d at 204-205, 668 NYS2d at 545). Therefore, plaintiff must establish, separate from the order of protection, some form of direct contact between defendant's agents and herself or her son as well as justifiable reliance on her part.
The element of direct contact generally means contact between the injured party and the municipality (Kircher v. City of Jamestown, 74 NY2d 251, 554 NYS2d 995 [1989]). However, in Mastroianni v. County of Suffolk (91 NY2d 198, 668 NYS2d 542 [1997], the court emphasized that a flexible approach must be utilized with this element when an order of protection is involved. Thus, in Sorichetti v. City of New York (65 NY2d 461, 492 NYS2d 591 [1985]), the court allowed contact between the police and the mother of the injured infant to [*3]substitute for direct contact between the police and the infant.
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Here, there was no contact at all between the victim and the Sheriff's Department. The only contact between plaintiff and the Sheriff's Department was on June 23, 1998, the day after the order of protection was issued and more than three months before the shootings, when two deputies accompanied her to the marital residence to pick up her belongings. Nonetheless, plaintiff contends that by filing a petition in Family Court, she has satisfied the element of contact. However, no authority is cited for this assertion and as a practical matter, a law enforcement agency would have no way of knowing that plaintiff had filed a petition in Family Court.
Plaintiff also contends that Family Court, by sending the order of protection to the Sheriff's Department, established the element of direct contact. Again, no authority is cited for this contention. Further, the Sheriff's Department's obligation to pick up the firearms of someone against whom an order of protection has been issued did not stem from a request by plaintiff to do so but from federal legislation enacted by Congress that requires the surrender of one's firearms when that person is subject to an order of protection. If this scenario will suffice to establish the element of direct contact, it is for a court higher than this one to so state.
The court also believes that the element of justifiable reliance is missing here. Plaintiff was fully aware that her husband still possessed firearms and knew their son was shooting with him during his visits. Her knowledge of this "breaks any causal link between [the Sheriff's Department's] alleged inaction" and the death of her son (see, Sachanouski v. Wyoming County Sheriff's Department, 244 AD2d 908, 665 NYS2d 197 [4th Dept. 1997]). Plaintiff's own testimony that she knew her husband had guns demonstrates that she did not rely on the Sheriff's Department to take those guns (see, Basher v. City of New York, 268 AD2d 546, 702 NYS2d 371 [2d Dept. 2000]). To establish the element of reliance, plaintiff must demonstrate that the
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defendant's conduct "lulled [her] into a false of security" and placed her in a worse position than if the defendant had never assumed the underlying duty (Finch v. County of Saratoga, 305 AD2d 771, 773, 758 NYS2d 220, 223 [3d Dept. 2003]). There is no showing that plaintiff placed herself in any worse position based on anything the police promised or that she expected them to do (see Starr v. County of Cortland, 6 AD3d 775, 774 NYS2d 596 [3d Dept. 2004]).
Plaintiff contends that the deputy should have arrested Dahl Pearson when Pearson refused to tell him what had happened to his guns. A similar argument was rejected in Clark vs. Town of Ticonderoga (291 AD2d 597, 737 NYS2d 412 [3d Dept. 2002]). There, the court noted that the ultimate decision to release a criminal on bail or recognizance, even assuming an arrest is warranted, is a judicial decision, not one left to police agencies. Further, any defendant arrested on a misdemeanor must be afforded bail (CPL 530.20[1]). Any claim that the failure to arrest Dahl Pearson led to the death of Darin is far too tenuous and remote to support this action.
Finally, the shooting occurred more than three months after the deputy served the order of protection on Dahl Pearson. In Finch v. County of Saratoga (305 AD2d 771, 758 NYS2d 220 [3d Dept. 2003]), the court found that any reasonable reliance on the municipality's promise to arrest had dissipated by the time of the shooting 20 days later (see also Cuffy v. City of New York, [*4]69 NY2d 255, 513 NYS2d 372 [1987]); Melanson v. State of New York, 215 AD2d 43, 633 NYS2d 858 [3d Dept. 1995]). Thus, the claim that plaintiff's reliance on the Sheriff's Department led to her son's death three and a half months later is similarly too remote to be actionable.
Accordingly, the motion for summary judgment is granted. Submit order on notice.
Dated: Little Valley, New York
March 7, 2005 _________________________
HON. LARRY M. HIMELEIN
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