Walsh v. Town of Cheektowaga

Order affirmed with costs. Memorandum: In the early morning hours of September 18, 1992, a police officer employed by defendant Town of Cheektowaga (Town) pulled over an automobile owned by plaintiffs decedent, Jacqueline Walsh. An acquaintance of Walsh was driving and she was a passenger. As the result of the traffic stop, the acquaintance was placed under arrest for driving while intoxicated. Based upon his observations of Walsh, the officer determined that Walsh was also intoxicated and unable to drive safely, and an Alcosensor screening test administered at the scene indicated that Walsh’s blood alcohol concentration was .16%. At his examination before trial, the officer testified that he offered to call a cab or give Walsh a ride to any destination she chose, but Walsh wanted to drive her car. When the officer refused to permit Walsh to drive, she left the scene on foot. As Walsh walked away, other officers arrived. Approximately 15 minutes later, Walsh was struck by a train while crossing railroad tracks that were approximately 35 feet from where her car was stopped. She died a short time later. Plaintiff commenced this wrongful death action, alleging that Walsh’s death was the result of the negligent acts and omissions of the Town’s Police Department. The Town moved for summary judgment dismissing the complaint on the ground that it had no special relationship with Walsh. Supreme Court properly denied that motion. Plaintiff does not seek to impose liability on the Town for its failure to provide adequate police protection (see, Snyder v City of Rochester, 124 AD2d 1019; cf., Cuffy v City of New York, 69 NY2d 255, mot to amend remittitur dismissed 70 NY2d 667). Rather, plaintiff alleges that the officers were negligent in removing Walsh from her automobile and thereby leaving her stranded, in a visibly intoxicated state, on a dark road within 35 feet of railroad tracks, at 5:30 in the morning. That issue may be resolved under general negligence principles (see, Snyder v City of Rochester, supra). As the Court of Appeals observed in Parvi v City of Kingston (41 NY2d 553, 559): "The case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care 948 (Marks v Nambil Realty Co., 245 NY 256, 258; Glanzer v Shepard, 233 NY 236, 239; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 App Div 867). As Restatement of Torts 2d (§ 324) puts it, 'One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure to the actor to exercise reasonable care to secure the safety of the other while within the actors charge or (b) the actor’s discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him’.” Further, "this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued” (Parvi v City of Kingston, supra, at 559, citing Restatement [Second] of Torts § 324, comment g). In our view, whether the officers were negligent is a question of fact for resolution by a jury (see, Parvi v City of Kingston, supra, at 560; Kaplan v Dart Towing, 159 AD2d 610, 612). Further, this Court should be "reluctant to grant summary judgment against a plaintiff in a wrongful death action since the plaintiff is not held to as high a degree of proof as where an injured plaintiff can [herjself describe the occurrence” (Zibbon v Town of Cheektowaga, 51 AD2d 448, 450, appeal dismissed 39 NY2d 1056). The circumstances leading to Walsh’s death are exclusively within the knowledge of the officers and plaintiff should have the opportunity to subject their accounts to cross-examination (see, Manna v New York City Hous. Auth., 215 AD2d 335). Finally, it should be noted that the Town is not entitled to rely on conversations between Walsh and the officers in support of their motion for summary judgment because those conversations are not admissible under the Dead Man’s Statute (CPLR 4519; see, Zibbon v Town of Cheektowaga, supra, at 452, n 1). All concur except Boehm, J., who dissents and votes to reverse in the following Memorandum.