Opinion
Argued January 11, 1984
Decided February 23, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, GEORGE F.X. McINERNEY, J.
David Holmes and Edward J. Hart for appellants.
Stanley N. Young and Judy Slater Hirshon for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, County of Suffolk, reinstated.
Faced with a report of a loose horse near a major thoroughfare, the police either had to locate the horse, stop traffic on the road, or take other precautions to protect motorists. With only a few officers immediately available, there was insufficient personnel to pursue more than one course of action. They chose to conduct a search, but were unable to find the animal before the car in which plaintiff was a passenger struck it while moving at a high rate of speed.
Plaintiff seeks to recover for her injuries on the theory that the police carried out their duties negligently. The gravamen of her action, however, is that the police should have allocated their limited resources in a different manner. Her failure to establish the existence and breach of a "special duty" is fatal to her cause. Thus, the trial court ruled correctly when it vacated the verdict and dismissed plaintiff's action (cf. De Long v County of Erie, 60 N.Y.2d 296).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and KAYE concur in memorandum; Judge SIMONS taking no part.
Order reversed, etc.