In Sutton v. City of New York, a 90 year old was mauled to death by two pitbulls that had been roaming the neighborhood for three months. The plaintiff claimed that repeated calls to the police by the decedent’s neighbors and family regarding the roaming pitbulls put the City on notice of the damager, and created a “special duty” to protect the decedent from attack. The court found that the plaintiff failed to satisfy the elements of the four part test to establish the “special duty.” The elements are: (1) assumption by the municipality to act on behalf of the party that was injured; (2) knowledge on the part of the municipality that inaction could result in injury; (3) direct contact between the potential victim and the municipality’s agents, and (4) the party’s reliance on the municipality’s affirmative undertaking. Since the decedent did not make any calls on his own, and had no direct contact with city, there was no “affirmative duty” to act on his behalf. Accordingly, the court granted the City’s motion for summary judgment and dismissed the case.
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