Edward G. Lauer,
City of New York, et al.,
2000 NY Int. 62
On this appeal we revisit a familiar subject: whether a member of the public can recover damages against a municipality for its employee's negligence. Here we answer that question in the negative.
Three-year-old Andrew Lauer died on August 7, 1993.
That same day, Dr. Eddy Lilavois, a New York City Medical
Meanwhile, the police department's investigation into Andrew's death continued. Some 17 months later, in March 1995, after a newspaper exposé, the autopsy findings were revised, the police investigation ceased and an amended death certificate was prepared. As a result of this incident, the City Medical Examiner who had conducted the examination resigned.
Plaintiff and his estranged wife subsequently commenced
separate actions. Lisa Lauer's action against the City of New
York and Dr. Lilavois, seeking damages for intentional and
negligent infliction of emotional distress, was dismissed. In
In the present action seeking $10 million in damages against the City of New York, the Office of the Chief Medical Examiner, Dr. Lilavois and the Police Department, plaintiff alleges defamation, violation of his civil rights, and both negligent and intentional infliction of emotional distress. He claims that defendants' conduct--including the Medical Examiner's negligent performance of the autopsy, failure to correct the erroneous report and death certificate, and failure to disclose that Andrew's death was not a homicide--"precipitated the destruction of [his] marriage * * * forced him to sell his home and leave his neighborhood, and caused him to become the object of public scorn, humiliation, ridicule, embarrassment, harassment and contempt throughout the City of New York." He further alleges that he "sustained severe and debilitating emotional distress, emotional anguish, anxiety and mental suffering."
On defendants' motion, Supreme Court dismissed the
defamation and civil rights causes of action, but allowed
plaintiff to pursue his emotional distress claims. A divided
Appellate Division modified Supreme Court's order (see, 258 AD2d
92). All of the Justices agreed that the defamation and civil
The Law as Applied to the Facts
Analysis begins with several undisputed propositions.
Municipalities long ago surrendered common law tort immunity for
the negligence of their employees. A distinction is drawn,
however, between discretionary and ministerial governmental
acts. A public employee's discretionary acts--meaning conduct
involving the exercise of reasoned judgment--may not result in
the municipality's liability even when the conduct is negligent.
By contrast, ministerial acts--meaning conduct requiring
adherence to a governing rule, with a compulsory result--may
subject the municipal employer to liability for negligence (see,
Tango v Tulevech, , 61 NY2d 34, 40-41). No one disputes that the
Medical Examiner's misconduct here in failing to correct the
There agreement ends. Plaintiff contends that the City should be liable for the Medical Examiner's "ministerial negligence," while defendant urges that the complaint be dismissed.
We do not agree with plaintiff that a ministerial
breach by a governmental employee necessarily gives rise to
municipal liability. Rather, a ministerial wrong "merely removes
the issue of governmental immunity from a given case (
This brings us directly to an essential element of any negligence case: duty. Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm (see, Pulka v Edelman, , 40 NY2d 781, 785, rearg denied , 41 NY2d 901; see also Prosser and Keeton, Torts § 53, at 357 [5th ed]; 3 Harper, James and Gray, Torts § 18.1, at 650). While the Legislature can create a duty by statute, in most cases duty is defined by the courts, as a matter of policy.
Fixing the orbit of duty may be a difficult task. Despite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and "limit the legal consequences of wrongs to a controllable degree" (Tobin v Grossman, , 24 NY2d 609, 619; Strauss v Belle Realty Co., , 65 NY2d 399, 402). Time and again we have required "that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him" (Johnson v Jamaica Hosp., , 62 NY2d 523, 527; see also, Palsgraf v Long Is. R.R. Co., 248 NY 339, 341, rearg denied 249 NY 511).
This is especially so where an individual seeks
recovery out of the public purse. To sustain liability against a
municipality, the duty breached must be more than that owed the
public generally (see, Florence v Goldberg,
Pointing to New York City Charter § 557, plaintiff argues that the Office of the Chief Medical Examiner owed him a duty to communicate accurate information to authorities pertaining to his son's death. Section 557 charges the Chief Medical Examiner with examining "bodies of persons dying from criminal violence" or other suspicious circumstances, keeping "full and complete records in such form as may be provided by law," and promptly delivering "to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality."
Violation of a statute resulting in injury gives rise
In Steitz v City of Beacon (
"An intention to impose upon the city the crushing burden of such an obligation should not be imputed to the Legislature in the absence of language clearly designed to have that effect.
[ ... ]
"Such [City Charter] enactments do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyment of rights and privileges to which they are entitled only as members of the public. Neglect in the performance of such requirements creates no civil liability to individuals" (id., at 55-56).
New York City Charter § 557 similarly defines one of
Nor do we find any duty to plaintiff derived from a "special relationship" with him. A "special relationship" requires:
"(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking"
(Cuffy v City of New York, , 69 NY2d 255, 260). The "direct
contact" and "reliance" requirements are particularly important,
as they rationally define and limit the class of persons to whom
Those requirements are not met here. The Medical Examiner never undertook to act on plaintiff's behalf. He made no promises or assurances to plaintiff, and assumed no affirmative duty upon which plaintiff might have justifiably relied. Plaintiff alleges no personal contact with the Medical Examiner, and therefore also fails to satisfy the "direct contact" requirement of the test. There is, moreover, no indication that the Medical Examiner knew that plaintiff, or anyone else, had become a suspect in the case. Nor do Medical Examiners generally owe a "special duty" to potential homicide suspects. Their function in this context is not as a law enforcement agency but solely to impart objective information to the appropriate authorities for the benefit of the public at large (see, People v Washington, , 86 NY2d 189, 192-193).
As we explained in De Angelis v Lutheran Med. Ctr. (58 2 1053, 1055):
"A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting, especially when symmetry and sympathy would so seem to be best served, to impose new duties, and, concomitantly, liabilities, regardless of the economic and social burden. But, absent legislative intervention, the fixing of the 'orbit' of duty, as here, in the end is the responsibility of the courts."
Here, in order for plaintiff's claim for negligent infliction of
emotional distress to be successful, we would have to impose a
Fixing the orbit of duty has likely divided this Court more than any other issue. The present case is no exception, as evidenced by two dissenting opinions. Were the issue solely one of humanistic intuition or moral duty, the result might well be otherwise. Our responsibility, however, is to set the particular case before us into its carefully developed precedential framework, mindful always of the opportunities the common law allows for refinements to assure that the rule or principle that emerges is a sound one.
Here we cannot agree with our dissenting colleagues
that a duty to plaintiff is found under existing law. The Smith
Dissent, urging that the special relationship test has been
satisfied, assumes extensive contact between plaintiff and the
Neither Wagner, nor Moch, nor Crosland--the dissenters'
case law pivots--supports such a duty. In Wagner v International
Ry. Co. (232 NY 176, 180), danger did indeed invite rescue, but
significantly there was a recognized duty owed by defendant
railroad directly to its passenger, who was the subject of the
rescue; there was no comparable relationship between plaintiff
and the Medical Examiner. In H.R. Moch Co. v Rensselaer Water
Co. (247 NY 160, 168), the Court acknowledged that launching a
force or instrument of harm might constitute legally cognizable
negligence. Any liability for such conduct, however, nonetheless
required a recognized duty on the part of the municipal defendant
running to the plaintiff. Indeed, Moch exemplifies the principle
we apply today: the Court there dismissed plaintiff's claim,
concluding the action was "not maintainable as one for a common-
law tort because defendant waterworks company--having contracted
to supply water to the City--owed no duty directly to the
Finally, Crosland v New York City Trans. Auth. (68 2 165, 169-170), addressing the standard of care owed by a publicly owned common carrier to its passengers, is also readily distinguishable. Relying on Public Authorities Law § 3), which authorizes private recovery against the Transit Authority for the negligence of its employees in the operation of the subway system, the Court in Crosland held that defendant could be liable for its employees' negligent failure to summon aid while watching, from a position of safety, a passenger beaten to death. As we made clear in Kircher v City of Jamestown (74 2 251, 254-255 n 1), the City's statutory responsibility was key to our holding in Crosland. There is no similar responsibility here.
Among the many concerns courts have in enlarging the
ambit of duty--especially in the area of municipal liability--is
concern for the consequential effects of their decision. The
Bellacosa Dissent insists that its proposed heightened duty is
"inevitably narrowed" and pinpointed, owing to a relatively
self-defined, small circle of potential suspects--indeed,
"extend[ing] only to this plaintiff." We cannot agree that this
is so. In our view, allowing emotional distress claims against a
municipality for an official's negligent failure to transmit
correct information to law enforcement authorities conducting
criminal investigations in this case will have far-reaching
In the end, plaintiff's claim is not supported by existing law, and we cannot agree that the proposed enlargement of the orbit of duty, resting largely on the foreseeability of harm, is a sound one.
Accordingly, the order of the Appellate Division should
be reversed, without costs, the complaint dismissed and the
certified question answered in the negative.
Lauer v City of New York
Because I believe that plaintiff Edward G. Lauer has adequately pleaded a prima facie case for negligent infliction of emotional distress, I dissent.
On August 6, 1993, plaintiff and his wife took their three year old son Andrew to the hospital because he was gasping for breath. After an examination, the hospital sent the child home. The next morning the child was dead. Defendant Eddy Lilavois, a medical examiner from the Office of the Chief Medical Examiner (OCME), conducted an autopsy and concluded that the child was murdered by blunt injuries of [the] neck and brain.
An investigation by the District Attorney focused almost immediately on plaintiff. On August 31, 1993, however, approximately three weeks after the initial autopsy, Dr. Angeline R. Mastri and Dr. Lilavois examined Andrew's brain and concluded that he died of natural causes from an aneurysm due to dysplasia of a branch of the left posterior cerebral artery. On that day, Drs. Lilavois and Mastri prepared a neuropathology report reflecting the accurate cause of Andrew's death. The report was filed with the OCME on October 14, 1993. Neither the New York City Police Department nor the District Attorney's office was apprised of the OCME's new findings regarding the true cause of Andrew's death. The Lauers were also not informed.
Police investigators allegedly attended Andrew's
funeral, informing plaintiff's friends and family that plaintiff
In March 1995, approximately 17 months after the OCME discovered the true cause of death, the New York Daily News began an inquiry into the status of the police investigation. The newspaper learned from the OCME that coroners had long ago reclassified Andrew's death as natural. It was only upon the Daily News' exposé that the authorities learned that Andrew's death was no longer considered a homicide. The OCME subsequently amended the autopsy report and prepared an amended death certificate.
Plaintiff commenced this action against the City of New York, the OCME, Dr. Lilavois, and the NYPD (collectively, defendants), sounding in intentional and negligent infliction of emotional distress, defamation and civil rights violations. Supreme Court granted defendants' motion to dismiss the complaint except for the causes of action alleging intentional infliction of emotional distress and negligent infliction of emotional distress. On defendants' appeal and plaintiff's cross-appeal, the Appellate Division determined that only the cause of action for negligent infliction of emotional distress was viable.
On this appeal, defendants contend that by failing to provide the District Attorney with an amended autopsy report, Dr. Lilavois and the OCME breached a governmental duty owed to the public at large, not a duty owed directly to plaintiff, and thus they are protected by governmental immunity. Plaintiff counters that Dr. Lilavois' omission was a breach of a ministerial function, for which governmental immunity does not exist. In my view, plaintiff has adequately alleged the breach of a ministerial duty for which defendants may be held liable in damages.
Although municipalities in this State have long surrendered their common-law tort immunity for the misfeasance of their employees, limitations exist regarding the scope of municipal tort liability. Generally, governmental immunity will attach when the official act of a municipal employee involves the exercise of discretion or expert judgment in policy matters and a municipal defendant will not be liable in damages for injuries sustained, even if resulting from negligence or malice (Haddock v City of New York, , 75 NY2d 478, 484). If the action is exclusively ministerial, however, the municipality will be liable if [the action] is otherwise tortious and not justifiable pursuant to statutory command (Tango v Tulevech, , 61 NY2d 34, 40).
Although distinguishing between an act of discretion
and a ministerial function may sometimes be difficult, this Court
Turning to the actions of Dr. Lilavois, a medical examiner's conclusions after an autopsy regarding an individual's cause of death involve the exercise of reasoned professional judgment and discretion. Thus, the doctor's initial erroneous conclusion that Andrew died from [b]lunt injuries of the neck and brain and his characterization of the child's death as a homicide would be cloaked with governmental immunity. In contrast, Dr. Lilavois' duty to notify prosecuting authorities of an error in the original autopsy diagnosis stems from a duty delineated by the New York City Charter § 577(g), which states:
Compliance with the scriptures of section 577 required no exercise of reasoned judgment on the part of Dr. Lilavois and the
The chief medical examiner shall keep full and complete records in such form as may be required by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality.
Defendants' contention that even if Dr. Lilavois
failed to perform a ministerial function, he breached a duty only
to the public at large and not to plaintiff individually should
be rejected. Municipal immunity presupposes an exercise of
discretion while performing a governmental function (Cuffy v City
of New York, , 69 NY2d 255). We have articulated that the policy
rationale underlying governmental immunity reflects a value
judgment that _ despite injury to a member of the public _ the
broader interest in having government officers and employees free
to exercise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory lawsuits,
outweighs the benefits to be had from imposing liability for that
injury (Haddock v City of New York, 75 NY2d,
With regard to whether the OCME owed a duty to
plaintiff to accurately report the status of Andrew's death,
Here, once Dr. Lilavois characterized Andrew's death as
a homicide and shortly thereafter learned that Andrew died of
Although a court, exercising extreme caution, may impose a legal duty where none previously existed (Pulka v Edelman, , 40 NY2d 781, 786), imposing a duty under these circumstances would not lead this Court into novel, uncharted waters of legal consequences. For example, liability in negligence may rest on a defendant's nondisclosure, which misleads a third-party and results in injury or damage to a plaintiff predicated on the fact that the misrepresentation or nondisclosure has led the person to whom it was made to forego action that might otherwise have been taken for the protection of the plaintiff (Eiseman v State of New >,, 70 NY2d 175, 187). This Court has stated that:
Liability in such cases arises only where there is a duty * * * to give the correct information * * *. There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon
it; that if false or erroneous he will because of it be injured in person or property. Finally, the relationship of the parties * * * must be such that * * * the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care (International Prods. Co. v Erie R.R. Co., 244 NY 331, 338; see also, Eiseman v State of New York, supra, at 187-188).
Applying these principles to this case, defendants owed
a duty to plaintiff upon which liability may be predicated. It
is undisputed that Dr. Lilavois breached his duty to promptly
deliver to the appropriate district attorney copies of all
records relating to Andrew's death (New York City Charter §
557[g]). Moreover, there can be no question that Dr. Lilavois
knew (1) of the importance and seriousness of communicating
correct information to the proper authorities regarding the
actual cause of Andrew's death, (2) that the authorities were
acting upon his initial assessment of the cause of death as a
homicide, and that they relied upon the OCME to act with due care
in deciphering Andrew's cause of death, and (3) that an error of
this kind would lead to an unnecessary homicide investigation and
possibly an erroneous arrest. Thus, the nature of the
relationship between the OCME and the District Attorney was such
that the District Attorney had the right to rely on the other for
information regarding criminality in death. Once Dr. Lilavois
and the OCME learned of the true cause of Andrew's death, they
had a duty to act with reasonable care to inform the authorities,
knowing that nondisclosure would result in further injury to
In Eiseman v State of New York (70 2 175,
The facts of this case hardly mirror the circumstances
in Eiseman. Dr. Lilavois knew that an investigation into
Andrew's death was pending pursuant to his initial report and he
allegedly knew that plaintiff was a suspect. Thus, the
possibility of danger to plaintiff here was so apparent as to
entitle him to be protected (Palsgraf v Long Is. R. Co., 248 NY
The imposition of a duty in this case is further
supported by this Court's decision in Crosland v New York City
Although the majority points out that the Transit
Authority in Crosland was liable pursuant to Public Authorities
Indeed, Crosland reflects the flexibility of this Court to balance considerations of social welfare and public interest against the boundaries of tort responsibility. The concept of duty is not static. As part of the common law process, courts may indeed fashion the scope of duty by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, * * * disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability (Palka v Servicemaster Mgt., , 83 NY2d 579, 586).
In this case, like the Transit Authority employee in
Crosland, Dr. Lilavois' ministerial, mechanical task of notifying
the authorities required nothing more than minimal efforts to
avert a grave injustice. Plaintiff had a right to reasonably
expect that the OCME perform its ministerial duties with
reasonable care and in compliance with statutory mandates.
Indeed society as a whole has the right to reasonably expect the
same, particularly where, as here, misfeasance has such far-
reaching implications. The imposition of liability here would
Finally, by causing a criminal investigation, Dr. Lilavois initiated a chain of events that created a danger to plaintiff. Subsequently, upon realizing that he created an unreasonable danger to plaintiff, a targeted suspect of the investigation, Dr. Lilavois had a duty to exercise reasonable care to prevent the harm (H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 167; Restatement § 321; see also, id., illustration 2).
This Court has stated that, absent a special relationship, a municipality does not owe a duty to its citizens in the performance of governmental functions, and thus courts will not examine the 'reasonableness' of the municipality's actions" (Sorichetti v City of New York, , 65 NY2d 461, 468). There can be no serious dispute here that Dr. Lilavois' negligent act was ministerial in nature. Thus, plaintiff need not show the existence of a special relationship to establish defendants' liability (see, Boland v State of New York, 218 AD2d 235). Nevertheless, the facts demonstrate that a special relationship between defendants and plaintiff existed.
In Cuffy v City of New York (69 2 255, 260), this Court delineated the four elements of a special relationship, which are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.
These four factors are sufficiently alleged in this case. The OCME assumed control of Andrew's remains and undertook an affirmative duty, through its actions, to correctly determine the cause of death. Once labeling the death a homicide, Dr. Lilavois and the OCME knew that such characterization would prompt a police investigation. Setting an investigation into motion, the doctor and the OCME knew or should have known that any failure to come forth with exculpatory information could unnecessarily prolong the police investigation, causing harm to the limited number of individuals suspected of the crime. Significantly, Dr. Lilavois and the OCME exclusively possessed the exculpatory evidence.
The direct contact element, which is closely related
to the element of reliance, serves to rationally limit the class
of persons to whom the municipality's duty of protection runs and
exists (Kircher v City of Jamestown, , 74 NY2d 251, 257). While
Here, plaintiff alleges that he had extensive contact
with the OCME. While the extent of the contact is not clear from
the record, this appeal is before us through a motion to dismiss.
Given the procedural posture, plaintiff has been foreclosed up to
this point from conducting discovery. Presumably, an agent from
the OCME came to retrieve Andrew's body from plaintiff's home.
However, what the record does establish is that Andrew's body
came into direct contact with the OCME and that plaintiff is
Andrew's next of kin. Under the circumstances of this case,
Andrew's body, in which plaintiff maintained a cognizable
property interest (see generally, Darcy v Presbyterian Hosp. in
the City of New York, 202 NY 259), is another link between
plaintiff and the OCME, and sufficiently distinguishes plaintiff
from the public at large (see, Kircher v City of Jamestown,
Finally, the key element of justifiable reliance is
The conclusion that a special relationship exists does not mean that plaintiff may automatically recover. It remains a question for the trier of fact as to whether plaintiff has established the claims raised in the complaint.
One to whom a duty of care is owed may recover for
injuries sustained as a result of negligently caused
psychological trauma so long as consequential physical
manifestations of trauma exist (Johnson v State of New York, , 37 NY2d 378, 381). Requiring physical manifestations, rather than
emotional symptoms alone, is thought to provide an index of
reliability (id.). This Court has recognized several exceptions
to the rule requiring physical symptoms, however. One may
recover for the emotional harm resulting from (1) the negligent
transmission by a telegraph company of a message announcing death
(id., at 382), (2) the negligent misinformation to a next of kin
regarding the death of a relative (id.; see also, Rotondo v
The unique circumstances of this case present a
sufficient guarantee of genuineness and seriousness to sustain a
cause of action for negligent infliction of emotional distress.
The record establishes that for 17 months plaintiff was
erroneously suspected of the murder of his only son. Plaintiff's
emotional injuries were allegedly the proximate result of Dr.
Lilavois' failure to inform authorities that Andrew's death was
caused by natural circumstances rather than homicide, as
initially suspected. Believing that plaintiff was a murderer,
his wife divorced him. His family, friends and neighbors shunned
him. For close to two years, plaintiff needlessly lived under a
cloud of suspicion, allegedly enduring depression and loss of
Under the circumstances presented, plaintiff should be given the opportunity to prove his allegations (see, Prosser, Torts [4th ed], § 54, at 330; see also, Bovsun v Sanperi, , 61 NY2d 219, 231; Battalla v State of New York, , 10 NY2d 237, 240-242).
For the foregoing reasons, I dissent.
I agree with Judge Smith's lead dissenting opinion, and add this expression to augment my vote for affirmance of the Appellate Division order.
This State's tort jurisprudence recognizes that "danger invites rescue" (Wagner v International R. Co., 232 NY 176, 180). That renowned case offers apt pari materia reasoning, and much more in the way of classic Cardozean guidance that is transcendent (id., at 180-182 ["The law does not ignore these reactions of the mind in tracing conduct to its consequences" and in determining that the "quality" of a defendant's acts relating to duty are appropriately questions of fact for a jury in circumstances such as are presented there and here]).
When an official initiates a course of events that
creates a particular danger, then affirmatively maintains the
Sword of Damocles over and directly onto the head of a particular
individual, a common law duty to that endangered and harmed
person ought to be recognized. This Court would do well to make
the policy choice open to it in this case, by acknowledging this
legal duty. The effect here would merely allow an opportunity,
The ruling I propose is especially warranted when the
public servant, who precipitated the investigation of plaintiff
as the suspect in the wrongfully certified homicide of his three-
year-old son, fails to remove or at least mitigate the risk and
harm that enveloped the life of that one knowable person. Time,
circumstance, and place make the Medical Examiner's matter-of-
course intervention a reasonable and feasible obligation. The
care would, in balanced and controllable theory, extend only to
this plaintiff. Indeed, the theoretical, foreseeable class would
be a relatively self-defined, small circle of potential suspects,
in any event (compare the widened duty perimeter in Wagner,
Next, the juridical norm I proffer is particularly
appropriate -- arguably, at an
This duty theorem should be as much the legal canon, as it is the humanistic intuition and moral duty of anyone with such official control over another human being -- indeed, someone in a unique and proximate position to "rescue" the very person he spliced onto the investigatory slide. This corollary to standard tort duty propositions involving the general governmental responsibility to the public evolves as an inevitably narrowed obligation, directed toward the unmistakably sole identifiable object of the Medical Examiner's series of actions and subsequent inactions (see, Restatement [Second] of Torts § 321; see also, id., comment a, illustration 2).
The general and the particular duties would thus complement one another, most justifiably (H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168). Moch teaches: "If conduct has gone forward to such a stage that inaction would
To immunize the kind of alleged misconduct described by
the pleading of this case would reward government agents who hide
the truth and sweep wrongdoings under a rug of tort impunity. In
such instances, truly responsible public employees have little to
no incentive to own up to wrongdoings, since their official
information is usually their secret (especially so in this case),
The danger to the public purse and public tort policy is not sufficient or proportionate enough to block any chance of accountability and redress here. The zone of the proposed duty, as paradigmed through this case for future guidance, would be prudently limited by the exceptional quality and quantum of factors in this hard, and yes sympathetic, case. The sympathy feature, I must emphasize, does not drive my analysis; nor should it, on the other hand, disqualify the plaintiff and his case from common law evolvement. The precedential template I propose is fully consistent with this Court's careful line drawing on the threshold duty question (see, e.g., Bovsun v Sanperi, , 61 NY2d 219; see also especially, Crosland v New York City Trans. Auth., , 68 NY2d 165, 170).
The key language of Crosland is particularly instructive, and not legally, realistically or semantically distinguishable, as the Majority proposes. We said in Crosland: "Watching someone being beaten from a vantage point [subway token booth] 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 NY 108, 116; Scalise v City of New York, , 3 NY2d 951)"
After the follow-up autopsy proving that no crime was committed, the Medical Examiner did not so much as phone or E- mail the District Attorney or the investigating detectives of the New York Police Department with a simple message, e.g., "I was wrong when I reported this as a homicide. The child died of natural causes. Please stop the investigation of this man." Instead, he did not even amend the death certificate for two
The issue in this case, after all, does not hinge on a general duty to the public or merely a ministerial one that is imposed on the Medical Examiner under the reporting statute (see, New York City Charter § 557[g]). This case involves a heightened duty phase, triggered at the subsequent and next level of particularized obligation.
I am, therefore, persuaded that the fact-pattern
parameters and the pinpointed legal rule that would emerge from
this case would parallel and build incrementally on the tempered
configurations of cases like Crosland and Wagner (
The principle and analysis that I endorse, along with Judge Smith, are what the law ought to proclaim as the standard measurement of human and governmental conduct to foster responsible and accountable discharges of specific obligations to generally governed and yet directly affected citizens. That is one of the traditional purposes of tort law principles. Prudent and fair evolvement of the common law supports this tort law policy choice. That is the process and role this Court has long taken, generally toward the positive development of the law, and particularly as applied to cognizable supplicants for judicial redress, like this plaintiff (see, Cardozo, Nature of the Judicial Process, at 133-137 and 161-167 [Yale Univ. Press]).
The step back from this opportunity -- by operation of the Majority reversal in this case of the sound Appellate Division Majority ruling below -- seals an undeniable miscarriage of justice. It was, to be sure, set in motion by the series of alleged blunders by the New York City Medical Examiner in this case. Instead of "rescuing" Lauer with the newly discovered truth, the Medical Examiner, under the microscope of the most benign reading of the allegations, remained grossly indifferent to stemming the harm he had let loose.
Plaintiff has sought only a day in court that is now foreclosed, thus immunizing the government's alleged wrongdoing against a concededly innocent citizen.
1 This Court has been especially reluctant to broaden the
concept of duty where, as here, the injury alleged is negligently
inflicted emotional injury (see, e.g., Johnson v Jamaica Hosp.,
2 Sorichetti v City of New York (65 2 461) is in no way analogous (see, Smith Dissent, at 14). In Sorichetti, a special relationship between the City and infant-plaintiff arose out of an order of protection, plus the City's knowledge--through direct dealings with the family--of the specific danger to the child, plus the City's instructions to the mother on the day of the assault, plus her reasonable expectation that the police would protect them (id., at 469).
3 While NYC Charter § 557 requires the Medical Examiner to report his autopsy findings to the district attorney, it cannot be disputed that the autopsy report is available to the next of kin (see, e.g., County Law § 677[c]).
4 The Court expressly rejected the plaintiff's argument that the Authority owed the plaintiff a special duty because no evidence of direct contact between Authority agents and decedent existed. Furthermore, the Court ruled that liability to the Authority could not be premised on the alleged breach of Transit Authority rule 85, which imposed a duty higher than the Authority actually owed to decedent.