Opinion
2009-130534.
Decided December 17, 2009.
O'Hara, O'Connell Ciotoli (Thomas J. Franta, Esq., of counsel), attorneys for Plaintiffs.
Hancock Estabrook, LLP (John L. Murad, Jr., Esq., and Janet D. Callahan, Esq., of counsel), attorneys for Defendants.
In this pre-answer motion to dismiss, the County Defendants seek dismissal of the complaint, pursuant to New York C.P.L.R. § 3211(a)(7), for failure to state a cause of action upon which recovery may be had. Plaintiffs seek a default judgment against Defendant Harry E. Klages, II, for his failure to appear and submit an Answer in this action. Additionally, Plaintiffs oppose the County Defendants' dismissal motion. Plaintiffs' default motion was not opposed and, thus, is properly granted as against Defendant Harry E. Klages II.
Plaintiff Andrew Lesperance suffered horrific personal injuries at the hands of Defendant Klages for which he seeks recompense. Klages allegedly invited Lesperance to his apartment for a party. It is alleged that while under the influence of alcohol and drugs, Klages detained Lesperance and brutally and savagely attacked him causing permanent and serious injuries. Lesperance and his co-Plaintiff sister sued Defendant Klages as well as the County Defendants for negligent control, supervision and reporting of probation violations since Klages was on probation with the St. Lawrence County Probation Department at the time of the attack. It is alleged that these deficiencies proximately caused or contributed to the attack.
The first cause of action is directed at the unnamed probation officer for negligent supervision of Klages. The second cause of action alleges the Defendants St. Lawrence County and its Administrator, Karen St. Hillaire; the St. Lawrence County Department of Probation and its Director, Francine Perretta; and, the St. Lawrence County Department of Health and its Director, William Serafin, (hereinafter "County Defendants") breached their duty to properly supervise their employees. The third cause of action alleges the Defendant County Health Department negligently failed to provide Klages with proper psychological care and treatment while on probation. The fourth cause of action alleges the theory of respondeat superior in an attempt to hold St. Lawrence County, St. Lawrence County Department of Probation, and the St. Lawrence County Department of Health responsible for the torts of their employees. In essence, Plaintiffs seek to hold St. Lawrence County, its agents and employees liable for their failure to protect Lesperance from its probationer, Klages. Causes of action five through seven are directed at Klages and, thus, not pertinent to the County Defendants' motion.
The County Defendants seek dismissal of Lacomb's claims for monetary damages for medical expenses, travel, and Lesperance's care insofar as she is Lesperance's adult sister and there is no duty under New York law for an adult sibling to pay the debts or expenses of another adult sibling. Additionally, the County Defendants seek dismissal of the Plaintiffs' claims for punitive damages alleged in the first cause of action as a result of the Probation Officer's negligent supervision of Klages since they are not recoverable against a municipality or a public officer acting within the scope of his/her official duties. Similarly, dismissal of the compensatory damages in the first through fourth causes of action is sought for failure to state a claim since no duty was breached, nor did any special relationship exist to create a special duty owed by the municipality to the victim.
In opposition to the motion, Plaintiffs submit a memorandum of law arguing the County Defendants had actual knowledge of Klages' violations of the terms of his parole including the possession and use of alcoholic beverages, illicit substances and the possession of firearms and weapons, but failed to report significant probation violations to the Court or take any action to prevent the reasonably foreseeable consequences thereof. It is argued that the County Defendants' negligent supervision of its probationer is premised upon the probation officer's legal duty to either the injured person or the general public, and that the officer failed to satisfy a standard of care in the performance of those duties and this failure was the proximate cause of the victim's injury. Plaintiffs argue a special relationship existed between the County Defendants and Klages — who was known to have a history of violence, substance abuse and mental instability — and that upon affirmatively learning of Klages' breach of the terms of his probation, they were negligent in failing to thwart "a plainly foreseeable violent assault of another innocent bystander by a drunken, psychotic, Harry Klages." Plaintiffs argue that a special relationship between the County Defendants and Klages exists since Klages was their probationer and, as such, they had a statutory and regulatory duty to supervise and control Klages under New York Executive Law [§ 256(1)], New York Criminal Procedure Law [§ 410.50(1), (2)], and probation regulations under 9 N.Y.C.R.R. § 352.1(a) [notify court within seven days of a significant probation violation] and, the St. Lawrence County Probation Department's own probation violation policies [notify court within five days].
Plaintiffs cite Boland v. State of New York, 218 AD2d 235 (3d Dep't 1996), to support their cause of action for negligent supervision of Klages without the need to establish the existence of a special relationship between the municipality and victim. In Boland, the Third Department held that the statute at issue was specifically enacted to protect abused, maltreated children, as opposed to the public at large. Additionally, Plaintiffs cite Goergan v. State of New York, 18 Misc 2d 1085 (Ct. Claims 1959), which held a governmental entity liable for the injuries inflicted by a parolee who was placed by the parole department in a remote location with a 58-year old widow. The facts of that case are that the Parole Board placed the violent parolee with claimant who was not told of his prior criminal record or violent history. Plaintiffs characterize the probation officer's enforcement of the terms and conditions of parole as a ministerial, non-discretionary duty by contrasting it to the discretionary act of the sentencing judge in setting the conditions of probation. Plaintiffs rely on case law from jurisdictions other than New York State which have held a probation department liable for negligent supervision of a probationer.
Moving Defendants take issue with Plaintiffs' focus upon the relationship between the Probation Department and its probationer, Klages. Of import on a claim such as the one asserted by Plaintiffs is, instead, the relationship between the municipality and the victim. County Defendants argue that absent the existence of a "special relationship," a municipality may not be held responsible for injuries suffered because of their failure to protect Lesperance.
The Court of Appeals' recent decisions in McLean v. City of New York , 12 NY3d 194 (2009), and DiNardo v. City of New York, ___ NY3d ___, 2009 WL 4250125 (2009), are highly instructive. In McLean the Court stated the
"long followed rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public. . . . [s]uch a duty . . . is born of a special relationship between the plaintiff and the governmental entity'."
McLean at 198 (citations omitted).
Citing to its holding in Pelaez v. Seide , 2 NY3d 186 (2004), the Court in McLean recited the three ways a special relationship can be formed
"(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."
(citations omitted)
McLean went on to cite Paelez in discussing the scenario where a municipality violates a statutory duty:
"To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; (3) to do so would be consistent with the legislative scheme ( see Sheehy v. Big Flats Community Day, 73 NY2d 629, 633 [1989]). If one of these prerequisites is lacking, the claim will fail."
Pelaez at p. 200.
Additionally, McLean went on to discuss the elements necessary to find a special duty which may arise from a municipality voluntarily assuming a duty by citing to Cuffy v. City of New York, 69 NY2d 255, 260 (1987):
"(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."
The Court of Appeals in McLean took upon itself to clarify its prior holdings in Tango v. Tulevech, 61 NY2d 34 (1983); Lauer v. City of New York, 95 NY2d 95 (2000); Pelaez, supra .; and, Kovit v. Estate of Hallums, 4 N.Y3d 499 (2005), all discussing ministerial and discretionary municipal acts. It reaffirmed Tango's and Lauer's holdings that discretionary municipal acts may never be a basis for liability; whereas, ministerial municipal acts may support liability only if a special duty is found to exist. Noting that to the extent "confusing language" may exist in Kovit and Pelaez which may otherwise be argued to extend the special relationship rule to discretionary municipal acts:
"If there is an inconsistency, we resolve it now: Tango and Lauer are right, and any contrary inference that may be drawn . . . in Pelaez and Kovit is wrong. Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general. The holdings of Pelaez and Kovit are consistent with this principle. In each of those cases we found no special relationship or special duty. Thus there could be no liability, whether the actions at issue were characterized as ministerial or discretionary."
Just recently, the Court of Appeals had further occasion to consider its prior holdings discussing municipality liability in DiNardo v. City of New York, ___ NY3d ___, 2009 WL 4250125 (December 1, 2009), wherein it held that — even if the school officials' actions were deemed to be ministerial as opposed to discretionary — no special relationship could be borne out of a supervisor's vaguely worded assurances to a teacher that "something" was being done to have a verbally and physically aggressive student removed from her classroom. Chief Judge Lippman's dissent, in which he concurred with the majority's result "on constraint of McLean v. City of New York," noted the consequences of holding that a special relationship' exception only applies to municipal ministerial actions by contrasting the facts of the Cuffy police protection case. He went on to state that police protection is a discretionary municipal function and, thus, under McLean "a plaintiff will never be able to recover for the failure to provide adequate police protection, even when the police voluntarily and affirmatively promised to act on that specific plaintiff's behalf and he or she justifiably relied on that promise to his or her detriment." Application of the rule in McLean, Judge Lippman noted, will
"allow[] public officials to unjustifiably hide behind the shield of discretionary immunity even when their actions have induced a plaintiff to change his or her behavior in the face of a known threat. Because almost any governmental act may be characterized as discretionary ( see Tango, 61 NY2d 41, citing Prosser, Torts § 132, at 990 [4th ed]), McLean too broadly insulates government agencies from being held accountable to injured parties."
In McLean, the Court of Appeals characterized the plaintiff's public policy argument as "an invitation to lax the special relationship rule to accommodate an especially appealing class of cases [helpless young children]" in order to find a special relationship between registered child care providers and parents and children requiring child care. Its decision was unequivocal:
"We decline the invitation. A well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government's protection.
The rationale of the rule, as we explained in Laratro ( 8 NY3d at 82), is that exposing municipalities to tort liability would be likely to render them less, not more, effective in protecting their citizens. Lawsuits, as we have said in Pelaez ( 2 NY3d at 201), are not the only way of dealing with governmental failure — and might even impel governments to withdraw or reduce their protective services. In Lauer ( 95 NY2d at 101), we quoted our warning in Steitz v. City of Beacon ( 295 NY 51, 55 [1945]) that a crushing burden' should not be imposed on a governmental body in the absence of [statutory] language clearly designed to have that effect.' These reasons forbid the making the sort of ad hoc exceptions to the special duty/special relationship rule that Ms. McLean seeks in this case."
McLean at p. 204.
Assuming (without deciding) the facts of this case involve ministerial acts, since discretionary acts may never be a basis for liability, the pertinent inquiry, then, is whether Plaintiff, the injured person — not Klages — was owed a special duty, as opposed to a general duty owed to the public. Plaintiff has not demonstrated a special relationship between himself and the County Defendants, its departments or agents as a result of the violation of statutory duty enacted to benefit a particular class of persons; the voluntary assumption of duty creating justifiable reliance; or, the municipal entities assuming positive direction and control in the face of a known, blatant and dangerous safety condition. There is no proof of: any direct contact between Lesperance or any Defendant; any assumption by Defendants, through promises or actions, of an affirmative duty to act on behalf of Lesperance, as the injured party; nor Lesperance's justifiable reliance on any affirmative undertaking by the County Defendants. It cannot be said that anything Defendants did or said caused Lesperance to be "lulled . . . into a false sense of security . . . induc[ing] him either to relax his own vigilance or to forego other available avenues of protection" Cuffy v. New York, 69 NY2d 255, 261 (1987). "The assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff." DiNardo v. City of New York, supra . No such facts exist in this case.
Likewise, citation to St. Lawrence County's own regulations or 9 N.Y.C.R.R. § 352.1(a) fails to provide proof of a special relationship where the governing statute does not authorize a private right of action nor can one be fairly implied. To succeed, Lesperance must be found to be within a protected class benefitted by the statute and a private right of action must be found to promote the statute's legislative purpose as well as be consistent with the legislative scheme. No such finding can be made on the facts of this case since the regulations and policies relied upon set forth the procedures to achieve compliance with probation rules — using graduated sanctions — while taking into consideration accountability and rehabilitation of the offender "consistent with public safety." 9 N.Y.C.R.R. § 352.1(d). Absent a finding that the statutory probation scheme was designed to protect a limited, discrete class of individuals which included Lesperance, a special relationship cannot be predicated upon any statutory duty. For this reason Plaintiffs' reliance on Boland, supra ., is inapplicable.
Moving Defendants' motion is granted. The action is properly dismissed upon the basis that no special relationship exists upon which liability can be predicated.
SO ORDERED