Should Governmental Immunity Protect Municipal Employees Who Fail to Intervene to Protect Citizens from Criminal Assault ?
In Crosland v. New York City Transit Authority (68 N.Y.2d 165, 498 N.E.2d 143, 506 N.Y.S.2d 670 ), the Court of Appeals held that governmental immunity should not protect municipal employees who fail to intervene to protect citizens from criminal assault.
In Crosland, the complaint alleged that a transit authority employee witnessed a brutal assault committed on the plaintiff from a protected booth, but inexplicably failed to summon aid, although he could have done so without risk to himself.
The failure to act was held to be beyond the boundary of the policy-based governmental immunity established in Weiner v. Metropolitan Transp. Auth. (55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124):
Whether any act or failure to act of a Transit Authority employee alleged in the complaint can be the basis for an actionable claim against the Authority depends upon whether it is within or without the boundaries of the policy-based governmental immunity established in Weiner v. Metropolitan Transp. Auth. (55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124, supra).
Because the complaint alleges that an employee seeing the injury being inflicted unreasonably failed to summon aid although he could have done so without risk to himself, we hold such failure to act beyond the boundary of the Weiner immunity.
Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable (cf. Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N.Y. 108; 116; Scalise v. City of New York, 3 N.Y.2d 951, 169 N.Y.S.2d 26, 146 N.E.2d 786).
Crosland did not, however, apply or seek to analyze the four elements of special relationship set forth in the preceding section of this decision, nor did it deal with police officers or a statutorily imposed duty.