Daas v. Pearson

• Decision Date: 24 February 1971
• Citation: 66 Misc.2d 95,319 N.Y.S.2d 537
• Parties: James DAAS and Gloria Daas v. Randolph PEARSON, Edgar Williams and E. J. Korvette, Inc.
• Court: New York Supreme Court

Page 537

319 N.Y.S.2d 537

66 Misc.2d 95

James DAAS and Gloria Daas v. Randolph PEARSON, Edgar Williams and E. J. Korvette, Inc.

Supreme Court, Special Term, Kings County, Part I.

Feb. 24, 1971.

Russo & Sapio, Mineola, for plaintiffs.

Reid, Devlin, Grubbs & Moore, New York City, for defendants Edgar Williams and E. J. Korvette, Inc.

MILTON MOLLEN, Justice.

Defendants Williams and E. J. Korvette, Inc., move to dismiss the complaint for insufficiency and for 'a further order of severance.' The action was brought to recover damages for personal injuries sustained by James Daas (hereinafter referred to as 'plaintiff') and by his wife, Gloria Daas, for loss of consortium.

The allegations of the complaint which, for the purpose of this motion, are to be deemed factually established, are as follows:

Plaintiff, a police officer, on duty on July 4, 1970 at approximately 4:00 P.M., while riding as a passenger in a New York City Police Department car, was injured as the result of an intersection collision between that vehicle and one owned and negligently operated by defendant Pearson. At the time of the occurrence the police car was responding to an emergency alarm, viz., 'assist patrolman' alarm. This alarm was engendered by a telephone call made by defendant Williams to 911, the police emergency number. The substance of the call as transmitted by Williams was 'Assist patrolman, four patrolmen being beaten at Korvett's (sic) Store on Fulton Street. This is Edgar Williams, Chief of Security. Repeat: Four City patrolmen being beaten in Korvett's (sic) on Fulton Street.' It is further alleged that Williams was in fact Chief of Security of Korvette's; that he made this call in the course of and pursuant to his employment by Korvette; that he was familiar and conversant with the procedure employed by the New York City Police Department in responding to calls for assistance; that Williams wilfully, knowingly and falsely sent this call for assistance; and that plaintiff subsequent to the accident discovered that the alarm to which he had been responding was in fact a false alarm.

As a threshold matter the court observes that there is no merit to the moving defendants' contention that plaintiff may not proceed against them because plaintiff, in his cause of action against Pearson, alleges that the accident occurred solely because of that defendant's negligence. If the negligence of the defendants was concurrent (as plaintiff alleges in his cause of action against the moving defendants), the allegation in the complaint against Pearson that the sole cause of the accident was that defendant's negligence is not preclusive (Jerome v. N.Y. Rys. Co., 190 App.Div. 311, 179 N.Y.S. 777; Demarest v. 42nd Street Manhattanville etc. R. Co., 104 App.Div. 503, 93 N.Y.S. 663). Moreover, CPLR 3014 authorizes the allegation of inconsistent causes.

In the opinion of the court, the allegations set forth facts which permit an inference that the alleged misconduct of Williams was in the apparent furtherance of his employer's business and was intentional and wilful and not simply careless or negligent. Under the circumstances, a wrong or tort was committed. The resultant accident and injury, although not intended by Williams, were legally foreseeable. While exhaustive research by the court has failed to disclose any case on all fours, this does not preclude liability for the resultant damages. The common law is not static. It will fashion a remedy to compensate a party injured by another's intentional and wrongful conduct. As stated in Kujek v. Goldman, 150 N.Y. 176, 178, 44 N.E. 773, 774:

'While no precedent is cited for such an action, it does not follow that there is no remedy for the wrong, because every form of action, when brought for the first time must have been without a precedent to support it. Courts sometimes of necessity abandon their search for precedents, and yet sustain a recovery upon legal principles clearly applicable to the new state of facts, although there was no direct precedent for it, because there had never been an occasion to make one. In remote times, when actions were so carefully classified that a mistake in name was generally fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur so as to prevent a failure of justice. This was called an 'action on the case,' which was employed where the right to sue resulted from the peculiar circumstances of the case and for which the other forms of action gave no remedy.'

The same principles were expressed by Mr. Justice Edgcomb in Bolivar v. Monnat, 232 App.Div. 33, 38, 248 N.Y.S. 722, 729, wherein the court stated:

'It is not necessary to define the nature of the action with meticulous accuracy. The element of negligence may be wanting because the act was done deliberately rather than carelessly. Under the authority of the Stratton and McCue Cases (supra (Commonwealth v. Stratton, 114 Mass. 303; McCue v. Klein, 60 Tex. 168)) we would be warranted in calling it an action for assault and battery. But it matters not what it is named, whether negligence, assault and battery, or an action on the case, the fact remains that the complaint alleges a violation of a right or duty growing out of the relations existing between the parties, and this gives plaintiff a right of action against defendant for the damages sustained. The novelty of the action, or the want of an exact precedent, does not deprive the plaintiff of a remedy for defendant's unlawful act.'

Exemplifications of the these precepts, although factually dissimilar from the instant case, are the holdings in Mitran v. Williamson, 21 Misc.2d 106, 197 N.Y.S.2d 689 and Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759, which hold that the intentional infliction of emotional harm by words or deeds is actionable. (See, also, Nader v. General Motors, 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 654, 255 N.E.2d 765, 770).

Moreover, on principles of common-law negligence, a cause of action is spelled out in the complaint. Defendants, citing Palsgraf v. Long Island RR., 248 N.Y. 339, 162 N.E. 99, contend in the first instance that they owed no duty of care to the plaintiff which was violated by any act committed by them and that no duty was breached because the accident was not foreseeable. The court does not accept this argument as valid. There is a duty when reporting an occurrence calling for police, fire or other emergency service entailing rapid vehicular response, to do so truthfully. This is a duty of reasonable conduct imposed by common law as well as by statute. Section 240.50 of our Revised Penal Law, entitled 'Falsely reporting an incident,' provides, in part, as follows:

'A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated to be false or baseless, he:

3. Gratuitously reports to a law enforcement officer or agency (a) the alleged occurrence of an offense or incident which did not in fact occur; * * *.'

While the violation of this statute may not be negligence per se (Beauchamp v. New York City Housing Authority, 12 N.Y.2d 400, 240 N.Y.S.2d 15, 190 N.E.2d 412; Schmidt v. Merchants Despatch Transp. Company, 270 N.Y. 287, 304, 305, 200 N.E. 824, 828--829; Major v. Waverly & Ogden, Inc., 8 A.D.2d 380, 190 N.Y.S.2d 526), the statute does establish a standard of reasonableness of care and conduct (cf. Edmonds, Inc. v. Vojka, 118 U.S.App.D.C. 109, 332 F.2d 309).

Words constitute an act (Liability for Negligent Language, 14 Harv. L.Rev. 184, 189) and words negligently or falsely and wrongfully uttered may be actionable under certain circumstances. The principles governing have been summarized in the dictum of the court in Advance Music Corp. v. American Tobacco Co., 268 App.Div. 707, 710, 711, 53 N.Y.S.2d 337, 340--341, revd. on other grounds, 296 N.Y. 79, 70 N.E.2d 401 as follows:

'Though a negligent statement may be the basis of recovery of damage, a cause of action exists only in favor of those who were expected to and actually do rely upon such statements to their damage. (International Products Co. v. Erie R. Co., 244 N.Y. 331, 155 N.E. 662, 56 A.L.R. 1377; Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425; Nichols v. Clark, MacMullen & Riley, Inc., 261 N.Y. 118, 125, 184 N.E. 729.) * * * The pertinent rule is set forth in International Products Co. v. Erie R. Co., (supra) 244 N.Y. at page 337, 155 N.E. 662, 56 A.L.R. 1377, as follows: 'Not every casual response, not every idle word, however damaging the result, gives rise to a cause of action. * * * Liability in such cases arises only where there is a duty, if one speaks at all, to give the correct information. And that involves many considerations. 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, arising out of contract Or otherwise, must be such that in morals and good conscience 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.' In Courteen Seed Co. v. Hong Kong & Shanghai Banking Corporation, 245 N.Y. 377, at page 381, 157 N.E. 272, at page 273, 56 A.L.R. 1186, the Court (Pound, J.) reiterated the established principle in the following language: 'The court has had to deal recently with cases involving liability for information negligently given. They all rest on the principle that negligent words are not actionable unless they are uttered directly, with knowledge or notice that they will be acted on, to one to whom the speaker is bound by some relation of duty, arising out of public calling, contract or Otherwise, to act with care if he acts at all.' The rule thus enunciated was specifically approved in Ultramares Corporation...