Engelhart v. County of Orange

• Decision Date: 07 March 2005
• Docket Number: 2003-10328.
• Citation: 2005 NY Slip Op 01675,16 A.D.3d 369,790 N.Y.S.2d 704
• Parties: TAMMIE ENGELHART, Respondent, v. COUNTY OF ORANGE et al., Appellants, and PAUL HARNISCH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 369

790 N.Y.S.2d 704

2005 NY Slip Op 01675

TAMMIE ENGELHART, Respondent, v. COUNTY OF ORANGE et al., Appellants, and PAUL HARNISCH et al., Respondents.

2003-10328.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 7, 2005.

In an action, inter alia, to recover damages for wrongful death, the defendants Michael I. Levy and the County of Orange separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Orange County (McGuirk, J.), dated October 21, 2003, as denied those branches of their respective motions which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is reversed, on the law, with one bill of costs, the motions for summary judgment are granted, and the complaint and all cross claims insofar as asserted against the appellants are dismissed.

On the morning of June 26, 1999, the plaintiff's decedent was fatally injured when the defendant Paul Harnisch, a voluntary psychiatric patient with a bipolar disorder of the defendant Dr. Michael L. Levy, struck him while driving an automobile on the Heritage Trail in Orange County. Heritage Trail is a paved pathway for pedestrians, bicyclists, and skaters. Motor vehicles, except emergency vehicles, are prohibited from using Heritage Trail.

The night before this tragic accident, based upon a telephone conversation with Harnisch's wife, Dr. Levy determined that Harnisch needed to be involuntarily hospitalized immediately because of his aggressive behavior. Dr. Levy instructed Harnisch's wife to call the police to take Harnisch from their home to a hospital.

According to Mrs. Harnisch, Dr. Levy told her that he could not "do anything" personally to hospitalize her husband. Mrs. Harnisch did not call the police that night. She told Dr. Levy that she feared that the police would dismiss her call as a domestic dispute and she did not wish to reveal her husband's condition to the police to protect his reputation as an attorney in the office of the Orange County District Attorney.

That evening, Harnisch fell into a deep sleep, after hardly sleeping for five days, and Mrs. Harnisch, relieved, believed the medication prescribed by Dr. Levy "was kicking in finally." However, Harnisch awoke at 4:30 A.M., and Mrs. Harnisch decided that her husband would have to go to the hospital that day. Unfortunately, Harnisch managed to leave the house on his own and drove away in his car, resulting in the tragic incident now at issue.

Dr. Levy moved for summary judgment based, in part, on an affidavit from his psychiatric expert. The expert stated that "Dr. Levy correctly diagnosed Paul Harnisch with bipolar disorder as of June 25, 1999 . . . [and] prudently recommended that the patient be involuntarily committed to a mental health facility that same night." The expert further stated that Dr. Levy's decision to wait for Mrs. Harnisch "to agree to involve the police . . . was a reasonable and appropriate judgment under all of the circumstances."

In opposition to Dr. Levy's motion, the plaintiff offered an affidavit from her psychiatric expert, who stated that Dr. Levy departed from the acceptable standard of psychiatric care, inter alia, by failing to initiate telephone calls to Mrs. Harnisch to advocate for Harnisch's involuntary hospitalization, and personally call the police to inform them of Harnisch's immediate need for hospitalization. According to the expert, Dr. Levy's deviations from accepted psychiatric practice proximately caused Harnisch's motor vehicle accident of June 26, 1999.

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 NY2d 781 [1976]; Gordon v Muchnick, 180 AD2d 715 [1992]). Absent a duty of care, there is no breach and no liability (see Pulka v Edelman, supra; Gordon v Muchnick, supra).

"The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts" (Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988]). Generally, there is no "duty to control the conduct of third persons to prevent them from causing injury to others," even where, as a practical matter, the defendant could have exercised such control (id at 8). Yet, "there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons" that a duty to do so will be imposed (id. at 8...