Barnes v. State

• Decision Date: 07 December 2017
• Docket Number: 523832
• Parties: Patricia BARNES, Individually and as Coadministrator of the Estate of Kevin Barnes, Deceased, and on Behalf of her Coadministrators, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 975

66 N.Y.S.3d 716

Patricia BARNES, Individually and as Coadministrator of the Estate of Kevin Barnes, Deceased, and on Behalf of her Coadministrators, Appellant,

v.STATE of New York, Respondent.

523832

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 13, 2017

Decided and Entered: December 7, 2017

Michael D. Altman, South Fallsburgh, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

Clark, J.Appeal from an order of the Court of Claims (Schaewe, J.), entered December 3, 2015, which, among other things, granted defendant's motion for summary judgment dismissing the claim.

At approximately 1:50 a.m. on October 26, 2008, State Troopers Jason Saddlemire and Anthony Gower initiated a traffic stop of a vehicle operated by Kevin Barnes (hereinafter decedent) for allegedly following too closely to another vehicle. After approaching decedent's vehicle, engaging with decedent and ascertaining the validity of decedent's driver's license, the troopers ultimately declined to issue decedent a traffic ticket for following too closely and left decedent—who had, according to the troopers, claimed to be tired—in his vehicle on the side of the road to await a ride home from his brother. Roughly 5 ½ hours later, decedent's body and vehicle were discovered off a road, down a hill, near his home. Decedent was pronounced dead at the scene and a subsequent autopsy determined that, at the time of his death,¹ decedent had a blood alcohol content of .173%, which was above the legal limit for operating a motor vehicle.

Claimant, decedent's spouse, commenced this wrongful death action, individually and on behalf of her coadministrators, alleging that the troopers' failure to arrest decedent for driving while intoxicated and their determination to allow decedent to retain control of his vehicle resulted in his death. Following joinder of issue, defendant moved for, among other things, summary judgment dismissing the claim, and claimant cross-moved for partial summary judgment on the issue of liability. The Court of Claims granted defendant's motion, denied claimant's cross motion and dismissed the claim, prompting this appeal by claimant.

Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers (see Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487 [1997] ; Santoro v. City of New York, 17 A.D.3d 563, 564, 795 N.Y.S.2d 60 [2005] ; Eckert v. State of New York, 3 A.D.3d 470, 470, 771 N.Y.S.2d 132 [2004] ), the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Metz v. State of New York, 20 N.Y.3d 175, 179, 958 N.Y.S.2d 314, 982 N.E.2d 76 [2012] ; Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999] ). As relevant here, a special duty arises when the governmental entity "voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; accord Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs., 28 N.Y.3d 709, 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 [2017] ). To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents' affirmative undertaking (see McLean v. City of New York, 12 N.Y.3d 194, 201, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ; Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ; Escribano v. Town of Haverstraw, 303 A.D.2d 621, 622, 757 N.Y.S.2d 310 [2003] ).

Defendant's submissions in support of its motion established, prima facie, that the troopers did not voluntarily assume a duty to decedent beyond what was owed to the public generally. In their sworn statements and deposition testimony, Saddlemire and Gower consistently stated that, although decedent asserted that he had two alcoholic drinks earlier in the evening, they did not observe any outward indicators of impairment or intoxication. They each stated that they did not smell alcohol on decedent's breath, that decedent did not slur his words and that decedent's motor skills appeared to be intact when he searched through his wallet for his driver's license. Saddlemire also stated that decedent claimed to be tired and that, in response, he suggested that decedent get a cup of coffee, pull over for a nap or call someone for a ride. According to Saddlemire, decedent asserted that he would call his brother to pick him up. Both troopers stated that, at no point did they speak with decedent's brother or indicate to decedent—after declining to issue a traffic ticket—that he was not free to drive himself home. Decedent's brother stated, in his deposition testimony, that decedent called him for a ride, that he did not speak with either trooper and that decedent later called him and told him that the troopers had left, that decedent no longer wanted a ride and that he was going to drive home. This proof established that the troopers did not assume, either through promises or actions, a duty to act on behalf of decedent (see Halpin v. Town of Lancaster, 24 A.D.3d 1176, 1177, 806 N.Y.S.2d 810 [2005], affd 7 N.Y.3d 827, 822 N.Y.S.2d 754, 855 N.E.2d 1169 [2006] ; Escribano v. Town of Haverstraw, 303 A.D.2d at 622, 757 N.Y.S.2d 310 ; Evers v. Westerberg, 38 A.D.2d 751, 751, 329 N.Y.S.2d 615 [1972], affd 32 N.Y.2d 684, 343 N.Y.S.2d 361, 296 N.E.2d 257 [1973] ). Further, even if such evidence established an affirmative undertaking, decedent's justifiable reliance could not be reasonably inferred, particularly given that, following the troopers' departure, decedent told his brother that he no longer wanted a ride and that he would drive himself home (see Valdez v. City of New York, 18 N.Y.3d at 81–82, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; ...