Haddock v. City of New York

• Decision Date: 29 March 1990
• Citation: Haddock v. City of New York, 75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987 (N.Y. 1990)
• Parties: , 553 N.E.2d 987, 58 USLW 2590, 5 IER Cases 358 Yvonne HADDOCK, Respondent, v. CITY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 439

554 N.Y.S.2d 439

75 N.Y.2d 478, 553 N.E.2d 987, 58

USLW 2590, 5 IER Cases 358

Yvonne HADDOCK, Respondent, v.CITY OF NEW YORK, Appellant.

Court of Appeals of New York.

March 29, 1990.

Victor A. Kovner, Corp.Counsel(June A. Witterschein and Leonard Koerner, New York City, of counsel), for appellant.

Joseph Kelner, New York City, for respondent.

OPINION OF THE COURT

KAYE, Judge.

This appeal, centering on the rape of a nine-year-old child in a New York City playground by a Parks Department employee with a history of violent crime, poses a modern-day dilemma: assuring the public safety as well as the rehabilitation of former felons to constructive lives within society.In this casewe conclude that the City was properly held liable for the child's injuries, and therefore affirm the Appellate Division order, but on narrower grounds.

After school on April 8, 1975, plaintiff, her sister and four other children went to The Bronx playground near her home.She usually played there several times a week, and knew James Johnson, then 55 years old, as the only Parks Department employee there.According to plaintiff and her mother, Johnson swept, picked up the garbage, and handed out the games, ropes and basketballs.On the day in question, Johnson gave plaintiff a jump rope and told her to return it to him when she finished with it.At about 5:00 P.M., when plaintiff went into the maintenance shed to return the rope, Johnson closed the door, blocked it with a desk, and for more than two hours repeatedly raped, assaulted and sexually abused the child while threatening to kill her.When Johnson finally allowed her to leave, she ran home and reported the incident to her mother, who took her to Misericordia Hospital where she was treated for her injuries.Johnson was ultimately convicted and sentenced to a lengthy prison term.

Johnson had begun work for the City barely seven months earlier--on September 14, 1974--pursuant to the Work Relief Employment Program (WREP).Created by the Legislature in 1971 as part of a welfare reform package, WREP was designed to put employable home relief recipients--including ex-convicts--to work in public and private nonprofit agencies, so that they might "work off" their public assistance benefits and also receive training for ultimate self-sufficiency and an escape from what one witness characterized as the "welfare syndrome."This program replaced prior statutory law allowing local welfare officials to prescribe employment, with a mandate requiring that they assign work to employable home relief recipients, and it permitted only limited local discretion to declare individuals unable to work (see, Social Services Law § 164).A criminal past--however gruesome--was not under the statute a ground for "unemployability."

Under the program, the local centers dispensing welfare checks determined an individual's eligibility.Once declared employable, participants received an intake interview, eliciting their qualifications and background, and they were employed by the City provisionally, subject to investigation.Participants were asked about any criminal record.While such a record was not a disqualification from WREP, persons with a criminal record would be asked to complete a declaration of convictions, which was then used to determine both their suitability for particular jobs (for example, an individual with a history of robbery or embezzlement would not be assigned as a cashier) and the need to check further with the Police Department(for example, for outstanding warrants).The guidelines of the City Personnel Department additionally provided: "Qualifications for employment of individuals with criminal convictions will be determined for each individual on the basis of the criminal and social seriousness of the act, the age of the person at the time of the offense, the length of time since the act or acts took place, known behavior since the last criminal act, the nature of the jobs to be filled and other pertinent factors."

Johnson appeared for his intake interview by the Department of Social Services on August 27, 1974.Based on the information he provided, his application reflected that he had no arrest record.As a matter of routine, his fingerprints were taken that day and forwarded to the City's Department of Personnel.On the sheet containing his fingerprint record, Johnson also stated that he had not been convicted of any crime, not even a moving violation.No further checking was done before he was put to work.

WREP participants were accepted within several City departments, in three job categories: clerical, human services and utility work.Utility workers' duties were described as follows: "Under close supervision performs simple routine tasks necessary for the operation and maintenance of city department facilities and performs related work."

On September 14 Johnson began as a Parks Department utility worker at the Parkside Playground in The Bronx.He was responsible for tidying up and maintaining his assigned station, which consisted of toilet facilities, a maintenance shed and the playground area.Johnson had a key to the maintenance shed, where supplies were kept, and he worked under the supervision of a district foreman, who visited the 25 or more parks under his jurisdiction several times weekly, for five or ten minutes each.^*As distinct from a recreation director (a competitive civil service post), the City considered that the job of utility worker did not involve public contact or working with children.

Although his fingerprints were taken in August and he commenced work in September, Johnson's prints were not actually received for processing by the Police Department until December 1974.As the City explained, WREP participants were assigned the lowest investigation priority, because State law mandated their employment, and because the City at that time faced a fiscal crisis requiring some 60,000 layoffs and the need for the Personnel Department to prepare civil service retention lists.On January 6, 1975, as the result of the Police Department's fingerprint check--which a City witness testified normally took "maybe 20 minutes"--the Personnel Department received Johnson's "rap sheet" reflecting his substantial criminal past.

While Johnson had told the City that he had no arrest record, the report reflected that by the time he reached the age of 21, in 1941, he had in fact accumulated a series of convictions in the South for hoboing, fighting, conspiracy to effect a prison break, assault, and breaking and entering.Then in 1946, in Queens County, he was convicted of attempted rape, robbery in the second degree and grand larceny in the first degree, and sentenced to a prison term of 15 to 30 years.Johnson was paroled in 1967.The report the City Personnel Department received from the Police Department indicated, however, that in 1968--within months of his release on parole--Johnson was rearrested on charges of rape, assault and use of a dangerous instrument.The report stopped there.

A second report, from the State Division of Criminal Justice Services, showed that the 1968 charges were dismissed, but that Johnson's parole was violated and he was returned to prison.He was released on July 22, 1974, at the expiration of his maximum sentence--weeks before the Department of Social Services intake interview and little more than seven months before his attack on plaintiff.The City Personnel Department, however, did not seek or receive that second report until the present lawsuit, and thus it did not know before April 8, 1975 of the parole violation or the disposition of the 1968 charges.

Plaintiff's first jury verdict against the City, in the amount of $2.5 million, was overturned by the Appellate Division and a new trial granted, because the trial court had erroneously failed to instruct the jury that any risk of injury had to be foreseeable by the City (106 A.D.2d 359, 483 N.Y.S.2d 288).After 11 trial days before a Judge and jury, a second verdict was rendered in plaintiff's favor, this time for $3.5 million.However, this verdict was set aside by the trial court and the complaint dismissed, on the ground that Johnson's hiring...