McCrink v. City of New York

Lewis, J. At an early morning hour of January 3, 1943, Harry Anderson, a New York City police patrolman, while off duty and concededly intoxicated, shot and killed Francis McCrink and seriously wounded the plaintiff, Sidney Murphy. The assault by Anderson, which was unprovoked, gave rise to two actions at law against the City of New York— one by the estate of Francis McCrink for damages resulting from his death, and one by Sydney Murphy for damages due to personal injuries he sustained. The two actions were consolidated at Trial Term where, based upon a jury’s award to each plaintiff, a single judgment was entered in their favor. At the Appellate Division that judgment was reversed on the law and the facts and each complaint was dismissed on the law. The case comes to us upon appeal by the plaintiffs as of right. -The assault occurred in the following circumstances: The decedent and Murphy, who had been together during the previous evening of January 2d, were homeward bound and were standing in conversation near the intersection, of Fourth Avenue and 87th Street in Brooklyn when they saw Anderson in civilian clothes walking toward them. He was obviously intoxicated. Neither the decedent nor Murphy was acquainted with Anderson although Murphy knew him to be a patrolman who lived in their immediate neighborhood on 87th Street. As Anderson approached the two men he cursed them and asked why they were standing there. It is Murphy’s testimony that “We told him to go home, that he didn’t know us.” At that moment a friend joined the group and invited the decedent and Murphy into a restaurant. As the three men left Anderson he turned and was seen walking toward his home on 87th Street. Fifteen minutes later the decedent and Murphy came out from the restaurant and walked across 87th Street where they stood for a brief time. While they were in conversation they heard Anderson addressing them in abusive language from the point where he stood in front of his home “ six or seven houses ” away. The two men again “ told him to go home ” and started toward Fourth *103 Avenue “ just to get away from Mm As they walked away Anderson fired from a revolver the two shots which brought death to the decedent and permanent injury to Murphy. Immediately after the shooting Anderson was taken to a precinct station where a police surgeon pronounced him ‘ ‘ intoxicated ”. He was confined in jail from that date until March 13, 1943, when he was removed to the Kings County Hospital where, on May 5, 1943, upon a court order (Code Crim. Pro., § 658) Ms mental condition was diagnosed as “ Psychosis due to alcohol. Paranoid deterioration type. ’ ’ That condition, according to testimony by one of the examining physicians — introduced by the plaintiffs without objection — was caused by “ His excessive indulgence in alcohol over a number of years ”. It “ * * * resulted in development of psychosis, characterized emotional, intellectual deterioration and delusions. ’ ’ The record also shows that on May 19, 1943 — less than five months after the assault — he was “ Dropped from the rolls of the Police Department; he having been committed to the Matteawan State Hospital for the insane ”. The breach of duty by the city which the plaintiffs pleaded and the theory upon which the case was tried was that the city negligently failed to discharge Anderson when it knew, or in the exercise of reasonable care should have known, that he was an incompetent, troublesome and vicious person who had become so addicted to an excessive use of alcohol that he had repeatedly been the subject of disciplinary action; and that, with knowledge of Anderson’s vicious propensities the city knew or should have known that his compliance with rule 288 of the Rules and Regulations of the Police Department — which required him as a patrolman to carry a revolver “ at all times ” — was a source of danger to the public. Upon its review of the record now before us the Appellate Division has ruled as a matter of law that — “ The facts are insufficient upon which to predicate the conclusion that defendant should have anticipated the assaults perpetrated by Anderson, even though four months after the occurrence, and on May 5,1943, Anderson was diagnosed as a ‘ Paranoid deterioration type ’ with a ‘ Psychosis due to alcohol (270 App. Div. 1019.) *104 Our examination of the record leads us to a contrary conclusion which is confirmed by evidence of disciplinary proceedings against Anderson which were matters of formal record in the Police Department and were before the Police Commissioner who admitted they Were “ thoroughly examined ” by him on those occasions when Anderson was before him charged with misbehavior. There is evidence that in October, 1928, Anderson was found guilty of being intoxicated while off duty and was fined and placed on probation for six months. In 1936, when he Was again found guilty of being intoxicated, his record was marked “ bad ” and he was fined and placed on probation for a year under the supervision of his commanding officer and a police chaplain. When that disciplinary action was taken the commissioner warned Anderson — “ If you get in any trouble while you are on probation, you are out. # * •* If you don’t want the job, just get into any kind of trouble, and you will be dismissed.” Then came an occasion in 1937 when his intoxication again led to disciplinary proceedings and again he was brought before the commissioner. On that occasion the following colloquy between the commissioner and Anderson reveals, as we view it, not only knowledge by the official head Of the defendant’s Police Department that Anderson was irresponsible and could not be depended upon to abstain from an excessive use of alcohol but — more important to our present problem — it is proof from which a jury might find that the commissioner was fully aware that he was not to be trusted to perform the duties of a patrolman: “ Q. [by the commissioner] — Now, you are in again on an intox — while on duty, in uniform, drunk, and this is your third intox. You know what happens on a third intox, don’t you? A. Well, I would like you to give me another chance. Q. I know that, but I say, you know what happens on a third intox. You know what usually happens ' on the second, and always happens on the third. A. I don’t know just what to say, sir, I am just excited at present, Commissioner. I get excited on those things. * * * Won’t you give me another chance, probation, Commissioner? Q. No, you don’t get another chance. You have had all the chances you are entitled to. Step out.” For reasons unexplained in the record the commissioner appears to have reconsidered his decision. Upon recalling *105 Anderson to the hearing theii colloquy continued: “ Q. [by the commissioner] I have got your dismissal papers all signed. * * * You don’t merit any consideration. Three intoxes. The first one is off duty, in civilian clothes, the second, off duty, in uniform, and the third one is on duty, in uniform. You have already finished up a year on probation. * * * You are here on your own. We treat you exactly as we find you. We don’t care anything about who you know, and in addition to being here on your own, we have your record since you came in the Department, and that is what determines whether you are going to stay in the Department, or whether you are going to be dismissed, your conduct flus your record, and your record doesn’t warrant, or justify anybody flacimg any confidence in you. You were here before and I asked you what probation meant. Do you remember what you told me? A. Well, Commissioner, probation — please give me one more" chance. # * * Q. All right, you are on probation for one year from today. Do you understand? A. Yes, sir. Q. What does it mean? A. It means to keep out of trouble or I will — I am finished.” When the italicized portions of the commissioner’s statements quoted above are considered with his admission in this case that a revolver in the hands of a drunken person is fraught with potential danger, and with his further testimony that “ * * * a patrolman, in our Department is required to carry a revolver at all times, even if he goes to church. On or off duty ”, we cannot say there is no'evidence from which a jury might find that his retention in police service as a patrolman involved potential danger to others. True it is — as urged by the city — that the statutory authority given to the Police Commissioner, as the chief executive officer of the Police Department, to dismiss a member of the police force, calls for the exercise of his discretion. (New York City Charter, §§ 431, 434; Administrative Code, § 434a-14.0.) But the Legislature in legal effect has limited the scope of that discretion by the enactment of section 8 of the Court of Claims Act which waives the State’s sovereign immunity from suit and consents to have its liability determined “ * * * in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations *106 * * * ”. The immunity thus waived and the consent thus granted apply to the “* * # civil divisions of the State [which] are answerable equally with individuals and private corporations for wrongs of officers and employees,— even if no separate statute sanctions that enlarged liability in a given instance.” (Bernardine v. City of New York, 294 N. Y. 361, 365.) It follows that- where, in circumstances such as those we are now considering, the retention of an employee may involve a'known risk of bodily harm to others, the field in which that discretion may be exercised by the head of a department is limited. It is superseded by the duty to abate that risk if in related circumstances danger to others is reasonably to be' perceived. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.) Otherwise a discretion as broad as that claimed by the city in this instance for the head of a department would often serve to restore without legislative action the immunity from suit • which the Legislature has waived by the enactment of section 8' of the Court of Claims Act. That waiver having been" effective to make the defendant city liable as is an individual or corporation for wrongful acts of its officers and agents (Bernardine v. City of New York, supra, p. 365), it may not with impunity retain in service an employee from whose retention danger to others may reasonably be anticipated. (Fletcher v. Baltimore & Potomac Railroad, 168 U. S. 135, 140; Rail v. Smothers, 240 N. Y. 486,490-491; Cusach v. Ottinger, 245 N. Y. 595; Wall v. D. L. & W. R. R. Co., 54 Hun 454, 458, affd. 125 N. Y. 727; Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356, 360-361; Matter of Sabbatino & Co., 150 F. 2d 101, 105; and see Restatement, Torts, §§ 317, 390.) Where, as in the ease at hand, “ * * * mere potentiality of injury exists, only such foresight as appears to be commensurate with its reasonably probable occurrence need be employed.” (Van Leet v. Kilmer, 252 N. Y. 454, 457.) We think it was a question of fact for the jury whether, in the circumstances disclosed by this record, the retention in police service of patrolman Anderson involved danger to others reasonably to be foreseen. The judgments should be reversed and a new trial granted, with costs to abide the event.