Lauer v. City of New York

• Decision Date: 16 May 2000
• Parties: EDWARD G. LAUER, Respondent, v. CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 95

733 N.E.2d 184

711 N.Y.S.2d 112

EDWARD G. LAUER, Respondent, v. CITY OF NEW YORK et al., Appellants.

Court of Appeals of the State of New York.

Argued April 5, 2000.

Decided May 16, 2000.

Michael D. Hess, Corporation Counsel of New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellants.

Leahey & Johnson, P. C., New York City (Peter James Johnson, Jr., Peter James Johnson, James Patrick Tenney and Christopher Delamere Clarke of counsel), for respondent.

Judges LEVINE, CIPARICK, WESLEY and ROSENBLATT concur with Chief Judge KAYE; Judges BELLACOSA and SMITH dissent and vote to affirm in separate opinions in which each concurs.

OPINION OF THE COURT

Chief Judge KAYE.

On this appeal we revisit a familiar subject: whether a member of the public can recover damages against a municipality for its employee's negligence. Here we answer that question in the negative.

The Facts

Three-year-old Andrew Lauer died on August 7, 1993. That same day, Dr. Eddy Lilavois, a New York City Medical Examiner, performed an autopsy and prepared a report stating that the child's death was a homicide caused by "blunt injuries" to the neck and brain. Although the report indicated that the brain was being preserved for further examination, the following day a death certificate was issued stating that Andrew's death was a homicide. Based on the Medical Examiner's conclusion, the police began investigating what they thought was a homicide, focusing primarily on plaintiff, Andrew's father. Weeks later, on August 31, 1993, the Medical Examiner and a neuropathologist conducted a more detailed study of Andrew's brain. The report, prepared in October 1993, indicated that a ruptured brain aneurysm caused the child's death, thus contradicting the earlier conclusion. The Medical Examiner, however, failed to correct the autopsy report or death certificate, and failed to notify law enforcement authorities.

Meanwhile, the Police Department's investigation into Andrew's death continued. Some 17 months later, in March 1995, after a newspaper exposé, the autopsy findings were revised, the police investigation ceased and an amended death certificate was prepared. As a result of this incident, the City Medical Examiner who had conducted the examination resigned. Plaintiff and his estranged wife subsequently commenced separate actions. Lisa Lauer's action against the City of New York and Dr. Lilavois, seeking damages for intentional and negligent infliction of emotional distress, was dismissed. In affirming the dismissal, the Appellate Division held that her allegations failed to establish "that she fell within any recognized orbit of duty upon which liability may be based" (see, Lauer v City of New York, 240 AD2d 543, 544,

lv denied 91 NY2d 807).

In the present action seeking $10 million in damages against the City of New York, the Office of the Chief Medical Examiner, Dr. Lilavois and the Police Department, plaintiff alleges defamation, violation of his civil rights, and both negligent and intentional infliction of emotional distress. He claims that defendants' conduct—including the Medical Examiner's negligent performance of the autopsy, failure to correct the erroneous report and death certificate, and failure to disclose that Andrew's death was not a homicide—"precipitated the destruction of [his] marriage * * * forced him to sell his home and leave his neighborhood, and caused him to become the object of public scorn, humiliation, ridicule, embarrassment, harassment and contempt throughout the City of New York." He further alleges that he "sustained severe and debilitating emotional distress, emotional anguish, anxiety and mental suffering." On defendants' motion, Supreme Court dismissed the defamation and civil rights causes of action, but allowed plaintiff to pursue his emotional distress claims. A divided Appellate Division modified Supreme Court's order (see, 258 AD2d 92). All of the Justices agreed that the defamation and civil rights claims were properly dismissed. They also unanimously concluded that plaintiff's intentional infliction of emotional distress claim warranted dismissal; that any causes of action based on performance of the initial autopsy were immunized as a governmental exercise of discretion; and that the Medical Examiner's failure to correct the reports and accurately inform the authorities were "ministerial" acts. The Appellate Division divided, however, as to whether plaintiff could maintain a claim for negligent infliction of emotional distress based on those ministerial acts, a majority concluding that he could. Viability of that single remaining claim is the issue now before us on this appeal.

The Law as Applied to the Facts

Analysis begins with several undisputed propositions. Municipalities long ago surrendered common-law tort immunity for the negligence of their employees. A distinction is drawn, however, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts—meaning conduct requiring adherence to a governing rule, with a compulsory result—may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41

). No one disputes that the Medical Examiner's misconduct here in failing to correct the record and deliver it to the authorities was ministerial.

There agreement ends. Plaintiff contends that the City should be liable for the Medical Examiner's "ministerial negligence," while defendant urges that the complaint be dismissed.

We do not agree with plaintiff that a ministerial breach by a governmental employee necessarily gives rise to municipal liability. Rather, a ministerial wrong "merely removes the issue of governmental immunity from a given case" (supra, 258 AD2d, at 111 [Sullivan, J. P., dissenting in part]). Ministerial negligence may not be immunized, but it is not necessarily tortious (see, Tango v Tulevech, supra, 61 NY2d, at 40

[recovery available only if ministerial action "is otherwise tortious and not justifiable pursuant to statutory command" (emphasis added)]; see also, Robertson, Municipal Tort Liability: Special Duty Issues of Police, Fire, and Safety, 44 Syracuse L Rev 943, 945 ["waiver-of-immunity statutes have not created new causes of action where none existed before; they have only removed the shield of governmental immunity where a cause of action would exist if the tort-feasor were a private person"]). There must still be a basis to hold the municipality liable for negligence (see, Florence v Goldberg, 44 NY2d 189, 195 ["Absent the existence and breach of * * * a duty, the abrogation of governmental immunity, in itself, affords little aid to a plaintiff seeking to cast a municipality in damages"]; see also, De Long v County of Erie, 60 NY2d 296 [liability for ministerial failure to process "911" call rested on County employee's affirmative assurances of assistance made to victim]; 18 McQuillin, Municipal Corporations § 53.04.25, at 165 [3d rev ed]).

This brings us directly to an essential element of any negligence case: duty. Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm (see, Pulka v Edelman, 40 NY2d 781, 785,

rearg denied 41 NY2d 901; see also Prosser and Keeton, Torts § 53, at 357 [5th ed]; 3 Harper, James and Gray, Torts § 18.1, at 650 [2d ed]). While the Legislature can create a duty by statute, in most cases duty is defined by the courts, as a matter of policy.

Fixing the orbit of duty may be a difficult task. Despite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and "limit the legal consequences of wrongs to a controllable degree" (Tobin v Grossman, 24 NY2d 609, 619; Strauss v Belle Realty Co., 65 NY2d 399, 402). Time and again we have required "that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him" (Johnson v Jamaica Hosp., 62 NY2d 523, 527; see also, Palsgraf v Long Is. R. R. Co., 248 NY 339, 341, rearg denied 249 NY 511).

This is especially so where an individual seeks recovery out of the public purse. To sustain liability against a municipality, the duty breached must be more than that owed the public generally (see, Florence v Goldberg, supra, 44 NY2d, at 195

; Smullen v City of New York, 28 NY2d 66, 70; see also, 18 McQuillin, Municipal Corporations § 53.04.25, at 165, supra).

Indeed, we have consistently refused to impose liability for a municipality in performing a public function absent "a duty to use due care for the benefit of particular persons or classes of persons" (Motyka v City of Amsterdam, 15 NY2d 134, 139). Here, because plaintiff cannot point to a duty owed to him by the Office of the Chief Medical Examiner, his negligence claim must fail.

Pointing to New York City Charter § 557, plaintiff argues that the Office of the Chief Medical Examiner owed him a duty to communicate accurate information to authorities pertaining to his son's death. Section 557 charges the Chief Medical Examiner with examining "bodies of persons dying from criminal violence" or other suspicious circumstances, keeping "full and complete records in such form as may be provided by law," and promptly delivering "to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality."

Violation of a statute resulting in injury gives rise to a tort action only if the intent of the statute is to protect an individual against an invasion of a...