McCormack v. City of New York

• Decision Date: 09 June 1992
• Citation: 80 N.Y.2d 808,600 N.E.2d 211,587 N.Y.S.2d 580
• Court: New York Court of Appeals Court of Appeals
• Parties: , 600 N.E.2d 211 Susan McCORMACK, as Administratrix of the Estate of Joseph McCormack, Deceased, Appellant, v. CITY OF NEW YORK, Respondent.

Page 580

587 N.Y.S.2d 580

80 N.Y.2d 808, 600 N.E.2d 211

Susan McCORMACK, as Administratrix of the Estate of Joseph McCormack, Deceased, Appellant, v. CITY OF NEW YORK, Respondent.

Court of Appeals of New York.

June 9, 1992.

[80 N.Y.2d 809] [600 N.E.2d 212] Harvey A. Levine and Richard A. Gilbert, New York City, for appellant.

[80 N.Y.2d 810] O. Peter Sherwood, Corp. Counsel (Barry P. Schwartz and Fay Leoussis, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs. 172 A.D.2d 357, 568 N.Y.S.2d 747.

Plaintiff's wrongful death claim against New York City arose out of an incident in which an Emergency Services Unit (ESU) police officer was shot and killed when an apparently emotionally disturbed individual who had barricaded himself inside a house emerged and fired a shotgun directly at him. Plaintiff's claim was premised on two distinct theories. First, plaintiff alleged that the City was negligent in supplying the decedent with a bullet-proof vest called a "Davis vest" that was not fit for use in situations involving barricaded, armed individuals, because, unlike some newer body armor equipment, the Davis vest left the wearer's sides exposed. Second, plaintiff contended that a negligently issued order from one of the commanding officers directing the ESU team members not to fire at the barricaded individual even if he discharged his weapon was the proximate cause of the decedent's death. Although the jury returned a verdict for plaintiff on both theories of liability, the Appellate Division correctly reversed the judgment and dismissed the complaint, since neither theory was legally supportable on this record.

With regard to her claim based on the alleged inadequacy of the bullet-proof vest, plaintiff's proof established nothing more than that the Davis vest may not have been "state of the art" equipment and that there existed other devices that might have been safer for use in situations such as that in which the decedent was killed. In general, the law only requires employers to furnish equipment that is reasonably safe, in good repair and suitable for its intended use (Cleary v. Dietz Co., 222 N.Y. 126, 133, 118 N.E. 509). "An employer does not owe [an] employee the legal duty of furnishing the best-known appliances * * * to protect such employee against injury" id., at 133, 118 N.E. 509).

Although plaintiff demonstrated that there were other, more protective equipment on the market, it cannot be denied that the Davis vest, which covers large areas of the upper torso, provides a measure of protection from gunfire and is therefore suitable for use in situations in which hostile gunfire is anticipated (cf., MacClave v. City of New York, 24 A.D.2d 230, 265 N.Y.S.2d 222, affd. 19 N.Y.2d 892, 281 N.Y.S.2d 86, 227 N.E.2d 885)....