Jones v. State

• Decision Date: 12 December 1972
• Docket Number: No. M--14178,No. 54555,54555,M--14178
• Parties: Lynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Respondent, v. The STATE of New York, Appellant. Claim; Cross Motion
• Court: New York Supreme Court — Appellate Division

Page 738

338 N.Y.S.2d 738

40 A.D.2d 227

Lynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Respondent, v. The STATE of New York, Appellant.

Claim No. 54555; Cross Motion No. M--14178.

Supreme Court, Appellate Division, Fourth Department.

Argued Oct. 17, 1972.

Decided Dec. 12, 1972.

Louis J. Lefkowitz, Atty. Gen., Albany (Jean M. Coon, Albany, and Ruth Kessler Toch, Sol. Gen., of counsel), for appellant.

Cunningham, Cole, Sorrentino & Cavanaugh, Buffalo (William J. Cunningham, Jr., Buffalo, of counsel), for respondent.

Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and CARDAMONE, JJ.

OPINION

DEL VECCHIO, Justice Presiding:

The State appeals from an order, 69 Misc.2d 1034, 331 N.Y.S.2d 512, denying a motion to dismiss a claim for failure to state a cause of action.

Decedent's injuries and death occurred in the course of efforts by the New York State Police to retake control of Attica State Correctional Facility following the prison uprising in which decedent was taken a hostage. The claim by his administratrix seeks to recover from the State for false imprisonment during the period of his detention and for the injuries and death resulting from the alleged negligence and wilful and intentional assault on decedent committed by the State and its employees.

The claim alleges that the State Commissioner of Correction and the Superintendent at Attica were charged with the responsibility for controlling the prisoners at Attica; that on September 9, 1971 Herbert Jones, an employee at Attica, was wilfully assaulted by the prisoners and taken hostage; that on September 13, 1971 a State Police officer under the command of Henry Williams, Captain of the New York State Police, while acting in the course of his employment for the purpose of forwarding the State's interest, wilfully and intentionally assaulted Jones by firing several shots at Jones, one or more of which struck him, thereby causing his death.

Unlike the minority, we find no allegation in the claim that an intentional tort was committed by the State in its governmental planning and decision making process by Officers entrusted with that responsibility. 'We may construe the allegations of a complaint liberally and at times disregard the form of relief sought, if the essential elements of right to relief exist. We cannot create a cause of action which is not alleged.' (Quintal v. Kellner, 264 N.Y. 32, 39, 189 N.E. 770, 773.) During the argument of the motion to dismiss, counsel for claimant conceded that the State Police officer was not assigned to go into the prison intentionally to kill Jones or any other employee.

Furthermore, it is well settled that in measuring the duty owed by the State to the public, the courts may not go behind the ordinary performance of planning functions by the officials to whom those functions are entrusted (Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, mot. for rearg. den. 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857). In Weiss the Court of Appeals pointed out the error of those who believe 'that the Court of Claims Act destroyed any and all facets of governmental immunity' (p. 586, 200 N.Y.S.2d p. 414, 167 N.E.2d p. 66), and demonstrated that the Legislature simply 'intended to put an end to the immunity of the State which derived from its status as a sovereign.' No change was intended, however, when the immunity rests on the policy of maintaining the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries. In these instances, which include the exercise of judgment in the course of governmental planning for the public safety, the inexpert opinion of a court or jury is not to be accepted over the expert opinion of the agency to which the subject has been entrusted. The decision by State officials charged with the responsibility for controlling prisoners at Attica to suppress the prison riot and retake control of the institution by the State Police of the purpose of restoring order logically falls within this class. 'It is fundamental in the case of a sovereign, and it would require far more explicit language than the Legislature has yet used to alter the rule, that there is no responsibility under substantive municipal law for the acts of a sovereign in war or the suppression of public disorders or for the creation and development of the necessary instrumentalities of force to implement these functions' (Newiadony v. State of New York, 276 App.Div. 59, 62, 93 N.Y.S.2d 24, 27). The function involved at Attica prison being clearly sovereign in nature and completely foreign to any activity which could be carried on by a private person or corporation, the waiver of immunity by section 8 of the Court of Claims Act was ineffective since the State has never waived its immunity in this regard (Bellows v. State of New York, 37 A.D.2d 342, 325 N.Y.S.2d 225).

No basis appears in statute or case law for a different result by reason of the allegations of wilful and intentional assault on decedent. In this case the governmental plan to suppress the riot and retake the prison involved deliberations of executive bodies which required the exercise of judgment of a quasi-judicial nature for which the State is not liable, notwithstanding such allegations (see Olson v. United States, D.C., 93 F.Supp. 150; Weiss v. Fote, supra, 7 N.Y.2d pp. 585, 586, 200 N.Y.S.2d pp. 412, 413, 167 N.E.2d pp. 65, 66).

The order should be reversed and the claim dismissed.

WITMER and MOULE, JJ., concur.

Order reversed without costs, motion granted and claim dismissed.

MARSH and CARDAMONE, JJ., dissent and vote to affirm the order, in the following Opinion by CARDAMONE, J.:

CARDAMONE, Justice (dissenting):

Herbert Jones, a State employee working as an accounts clerk at the Attica Correctional Facility was taken hostage on September 9, 1971 by the prisoners. He was killed when the facility was retaken by the State on September 13, 1971. His widow, Lynda Jones, as administratrix of his estate, brought a claim against the State for her husband's wrongful death. In her claim she alleges that the decedent's duties as an employee were completely clerical and had no relationship whatever to the guarding or disciplining of prisoners. Her claim alleges a first cause of action for decedent's wrongful death based on the State's negligence and a second cause of action for the same loss grounded on an intentional tort by the State in that in forwarding the State's interests it wilfully and intentionally shot decedent in the head, chest and back causing his death.

The State's motion to dismiss her claim for failure to state a cause of action was denied by the Court of Claims (Cooke, J.). The majority have reversed and dismissed the claim. I dissent.

To dismiss the claim at this stage of the litigation without affording claimant any appropriate disclosure proceedings to which she may be entitled is inequitable. (CPLR 3102; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3102.29.) Indeed, it could even be characterized as unfair since the State had steadfastly refused to grant claimant any disclosure whatever, even to the point of denying her a copy of her husband's autopsy report. The State should not be permitted to benefit by its own refusal to grant claimant these procedures. Its motion to obtain a dismissal of the claim at this stage of the litigation and under these circumstances is inappropriate and premature (see Banach v. The Aetna Casualty & Surety Co., 31 N.Y.2d 701, 337 N.Y.S.2d 511, 289 N.E.2d 553 (Decided October 6, 1972).

The majority incorrectly, in my view, dismiss this claim, concluding that it fails to state any cause of action. However, under the CPLR, motions to dismiss for failure to state a cause of action should not be granted unless it is clear that there can be no relief under any of the facts alleged in the pleading for the relief requested or for any other relief (Richardson v. Coy, 28 A.D.2d 640, 280 N.Y.S.2d 623; Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121; see also McKinney's Cons.Laws of N.Y., Book 7--B, CPLR 3013, Practice Commentary, Pocket Part 1972--73 p. 106). The same rule obtains in the Court of Claims (19 Carmond-Wait 2d, New York Practice, § 120:1). Turning to the substance of the claim which we construe liberally and in a light most favorable to the claimant, as we must upon a motion to dismiss, the claim alleges (1) an intentional tort and negligence committed by the State in its governmental planning and decision-making process; ¹ and (2) an intentional tort and negligence committed by State employees in forwarding these governmental plans.

The State contends that none of these allegations states a cause of action against it, either because it is immune to suit or because Workmen's Compensation is the sole remedy available to the claimant.

Considering first the sufficiency of the...