McCummings v. New York City Transit Authority

• Citation: 177 A.D.2d 24,580 N.Y.S.2d 931
• Parties: Bernard McCUMMINGS, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.
• Decision Date: 20 February 1992
• Court: New York Supreme Court Appellate Division

Page 931

580 N.Y.S.2d 931

177 A.D.2d 24

Bernard McCUMMINGS, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 20, 1992.

Joel A. Brenner, Hauppauge, of counsel (Jonathan Cory Scott, Northport, with him on the brief; David Breitbart, New York City, attorney) for plaintiff-respondent.

Lawrence Heisler, Brooklyn, of counsel (Anita Isola and Lawrence A. Silver with him on the brief; Albert C. Cosenza, attorney) for defendant-appellant.

Before CARRO, J.P., and MILONAS, ELLERIN, ROSS and RUBIN, JJ.

MILONAS, Justice.

At approximately 8:00 P.M. on June 28, 1984, Jerome Sandusky was attacked by a number of youths in the 96th Street station of the Eighth Avenue subway line in the course of an abortive robbery attempt. Two Transit Authority police officers, Christine Mead and Manuel Rodriguez, who were on undercover patrol, heard the elderly victim's screams and came to his assistance. As the officers approached the staircase with their guns drawn, one of the culprits, Nathan Woods, evidently acting as the lookout, yelled "Yo". Two other perpetrators, Jacob Wise and plaintiff Bernard McCummings, were on top of Sandusky at the lower level, the former with a choke hold around the victim's neck and plaintiff rummaging through his pockets; some of Sandusky's belongings were strewn about the floor. The parties offered differing versions as to what transpired next. According to Officer Rodriguez, he identified himself, shouting, "Police, don't move", but both Wise and plaintiff lunged at him, thereby causing him to discharge five shots. Two of the bullets struck McCummings in the back, one severing his spine and rendering him a paraplegic.

McCummings admitted that he was engaged in robbing and beating Sandusky but claimed that after being alerted by Woods' signal, he broke off the assault and fled down the other staircase in the opposite direction. He stated that he was some seventeen to twenty feet away from Officer Rodriguez when he was shot in the back. Plaintiff denied that he ever lunged at the officer. Plaintiff's medical expert testified that McCummings' spinal cord was immediately transected and that he instantly lost all weight bearing capability, and since he was found at the bottom of the stairs that is where he was shot. Defendant offered no credible medical evidence to the contrary. Officer Rodriguez asserted that despite plaintiff's wounds, plaintiff was able to run down a stairway before collapsing. On the direct examination of Officer Rodriguez, the jury heard him testify about three prior incidents involving the use of his firearm. The shootings were found to be "justified" by the Transit Authority. Officer Rodriguez twice before shot at fleeing suspects and missed, the first time firing twice, the second time emptying his gun. On another occasion, Officer Rodriguez shot and killed a stray dog which was apparently rummaging through his garbage can.

The jury, clearly accepting McCummings' account of the incident, found that Officer Rodriguez had used excessive force against plaintiff, who had previously pleaded guilty to robbery and spent some three years incarcerated in state prison. The panel then awarded him a total of $2.5 million for past and future pain and suffering, $622,142.55 for future medical supplies and equipment and $1.2 million for future nursing and other home care services. In that regard, it should be noted that the evidence demonstrates that one of the bullets that entered from the back and transected his spine caused total paralysis from the mid-chest down, resulting, among other things, in complete and permanent loss of urinary, bowel and sexual function. On appeal, defendant New York City Transit Authority has advanced a series of contentions which have either not been preserved or do not constitute reversible error.

Defendant urges that the action should have been dismissed pursuant to Penal Law 35.30 and the decision of the United States Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, or alternatively, that the holding in that case is not germane to the instant situation and, in any event, should not have been retroactively applied to this matter. Yet, since defense counsel not only did not object to reliance upon Tennessee v. Garner, supra, but acknowledged that Garner is both controlling and retroactively applicable, defendant may not for the first time before this court endeavor to disclaim the relevance and applicability of Garner (CPLR 5501[a][3]; De Long v. County of Erie, 60 N.Y.2d 296, 306, 469 N.Y.S.2d 611, 457 N.E.2d 717; Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 317, 434 N.Y.S.2d 166, 414 N.E.2d 666). Similarly, the Transit Authority failed to advise the trial court that it deemed it improper to charge the jury pursuant to the standard of reasonableness of an officer's conduct as enunciated in Tennessee v. Garner, supra, and defendant may not now advance such an argument on appeal (CPLR 4110-b). Defendant's assertion of qualified immunity is also precluded as not having been preserved and even on the merits is without substance inasmuch as the Transit Authority could be liable under the doctrine of respondeat superior (Frazier v. State of New York, 64 N.Y.2d 802, 486 N.Y.S.2d 919, 476 N.E.2d 318).

In Tennessee v. Garner, supra, the Supreme Court declared that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so" (471 U.S. at 11, 105 S.Ct. at 1701). Therefore, in the view of the Court therein, where "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force" (471 U.S. at 11, 105 S.Ct. at 1701). One indicator cited by the Court as illustrative of the danger presented by the suspect is whether he menaces the officer with a weapon.

It is significant that defendant never challenged the legal validity of any portion of the trial court's lengthy charge concerning the use of physical force by a police officer. Defense counsel merely requested that the court read to the jury the actual language of Penal Law 35.30, as well as a specific paragraph in Tennessee v. Garner, supra, notwithstanding that the statute and the Supreme Court ruling had been exhaustively explained to the members of the panel. The Transit Authority, insisting that Officer Rodriguez had no way of knowing whether or not the perpetrators were armed, appeared to believe that quoting from the subject Penal Law section and legal authority, could somehow benefit the defense's position, but, as the trial judge pointed out, Officer Rodriguez testified that the assailants' arms were outstretched and lunging at him without being in possession of any deadly weapons. Indeed, to the extent that the court provided an advantage to either party, it was more likely to have been to defendant than plaintiff by, for example, emphasizing that the burden of proof rested upon the plaintiff with respect to each and every element relating to the officer's use of deadly force.

Defendant also complains that the court improperly permitted the jury to consider the Transit Authority's 1982 and 1986 rules and regulations. First, it should be pointed out that defendant's attorney never protested the admission of the 1982 regulations nor ever moved that they be stricken. If anything, he acquiesced in their introduction into evidence and even affirmatively utilized these regulations in examining various witnesses both on direct and cross. Not until the precharge conference did defendant's lawyer assert that the 1982 regulations imposed a higher standard than the Penal Law or Tennessee v. Garner, supra, and that they not be included in the jury instructions. Although the court denied the request, it stated that it would merely direct the panel to consider the regulations in deciding whether or not Officer Rodriguez acted with a reasonable belief that he was justified in the use of deadly force, and this is what was done. Defendant, in its appellate belief, concedes that it did not object to the admission of 1982 rules and regulations but argues disingenuously that they were only relevant as to claims subsequently dismissed (such as the allegation that the Transit Authority had negligently failed to train its officers regarding the appropriate use of deadly force) and, thus, not submitted to the jury. Yet, this is not a distinction ever put forward by defendant to the court; its only concern appeared to be with the standard for employing deadly force.

Further, contrary to defendant's contention that the 1982 regulations set more stringent requirements than otherwise mandated by statutory or case law (see Lesser v. Manhattan and Bronx Surface Transit Operating Authority, 157 A.D.2d 352, 556 N.Y.S.2d 274, which held that internal operating rules must be excluded if they compel a standard transcending reasonable care), they do no more than authorize transit authority officers to apply deadly physical force in response to a felony involving or threatening physical force. The 1982 regulations provide in pertinent part that:

The minimum level of force will be used whenever preventing or terminating a crime, or when arresting a person for a crime. A firearm or other deadly physical force will only be used when any other level of force is insufficient to effect police control of a felony involving physical force or imminent use of physical force against oneself or another.

Not only did the foregoing rule not impose a...