In Shands v. Escalona , Deborah Shands claimed that she was hit by a tractor-trailer due to the negligence of a police officer, who was guiding her back onto the highway when her intended exit was flooded.
After Shands sued the City of New York and the driver of the tractor-trailer, the City sought to have the case dismissed claiming immunity from suit. When the Supreme Court denied the City's motion, an appeal to the Appellate Division, First Department, ensued.
In a brief opinion, the AD1 concluded that, without the existence of a "special relationship," the City could not be sued in this particular instance, and cited Kovit v. Estate of Hallums in support of that proposition.
In Kovit , Lewis Kovit crashed into a guardrail after a county police officer told him to move his vehicle from the expressway's shoulder, even though the driver allegedly indicated that he "had chest pains and wasn't feeling well." Our State's highest court found that in order for there to be liability, the officer had to be aware of "palpable danger, as where it is so obvious that a layman would ascertain it without inquiry, or where a person unambiguously communicated his incapacity to the officer."
The rationale for its stance in Kovit was given as follows:
If liability flowed from every negligent action, officials would be trained to shrink from their responsibility so as to avoid possible costs to their municipal employers. We expect better of our government, and therefore protect the discretion of its agents so municipalities will encourage them to carry out their duties in the service of the public.
But the inverse of that argument is equally true: If liability never flows from negligent conduct, officials may shirk the duty owed to the people of the municipality they serve and may fail to execute their responsibilities with due care and caution.
Here's the dilemma: Are we to disregard the instructions of municipal employees (such as police officers) when we are of the belief that our lives are in jeopardy? (While we are NOT recommending that course of action, the precedent we've examined would seem to suggest that we should.)
We're of the opinion this legal doctrine should be arrested.
To view a copy of the Appellate Division's decision, please use this link: Shands v Escalona
To view a copy of the Court of Appeals's decision, please use this link: Kovit v. Estate of Hallums