How Can the Element of Direct Communication Be Established ?
In Stata v. Village of Waterford (225 A.D.2d 163, 649 N.Y.S.2d 232 [3rd Dept. 1996]), it was held that a husband's communication on behalf of his deceased wife, who died in a fire, was sufficient to establish the element of direct communication.
"Here, plaintiffs version of the facts establishes that he made direct contact with and communicated the urgency of decedent's situation to the firefighters as well as the need for their immediate assistance, which they allegedly failed to provide.
A reasonable inference therefore can be made that this contact was made in decedent's interest and on her behalf for the sole purpose of assuring her protection and effecting her rescue, especially since she was totally helpless."
See also, Thomas v. City of Auburn, 217 A.D.2d 934, 629 N.Y.S.2d 585 (4th Dept. 1995), leave denied, 1995 WL 582125 (4th Dept. 1995), in which a promise of protection was made by police officers to Reddick, a bartender, after an altercation in the bar; Reddick then conveyed that promise to two patrons, Thomas and Tillman, who were inside the bar when the assurance of protection was made.
The Court held that the promise of protection extended to all three men, since the circumstances were such that the officer who gave the assurance to one of the victims knew, or should have known that it would be conveyed to Thomas and Tillman.
The Court noted that the police did have some direct contact with Thomas and Tillman, who were physically present in the area to be protected, and that their interests in receiving protection were the same as that of the bartender, with whom a "special relationship" clearly existed.