Mon v. City of New York

• Decision Date: 17 September 1991
• Parties: , 579 N.E.2d 689, 6 IER Cases 1425 Rodney MON et al., Respondents, v. CITY OF NEW YORK et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 529

574 N.Y.S.2d 529

78 N.Y.2d 309, 579 N.E.2d 689, 6 IER

Cases 1425

Rodney MON et al., Respondents, v. CITY OF NEW YORK et al., Appellants, et al., Defendants.

Court of Appeals of New York.

Sept. 17, 1991.

[78 N.Y.2d 310] [579 N.E.2d 690] Victor A. Kovner, Corp. Counsel (William J. Thom and Fay Leoussis, New York City, of counsel), for appellants.

Edward S. Rudofsky, Aaron J. Broder, New York City, and Arlene H. Greenberg, Howard Beach, for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

Defendant Shankman, then a probationary police officer, fired his revolver and injured both plaintiffs in attempting to apprehend them. A judgment was recovered against the City of New York for personal injuries and false arrest based on this incident. The ground for the personal injury recoveries was the allegedly negligent hiring of Shankman. In the City's appeal from a unanimous affirmance of the judgment at the Appellate Division, 163 A.D.2d 212, 557 N.Y.S.2d 925, the principal question is whether the City has governmental immunity from liability for negligence in hiring.

We hold that (1) the duties and functions of the officials who made the hiring decisions entail such discretion as would entitle the City to the protection of governmental immunity, and (2) because the decisions were made in the exercise of that discretion, they cannot result in the City's liability. Accordingly, to the extent that the judgment represents recoveries for personal injury, there should be a reversal. Since there was no exception to the trial court's submission of the false arrest claims to the jury, no legal issue with respect to those claims is preserved for our review. Therefore, as to that portion of the judgment, there should be an affirmance.

I

The lawsuit arises out of events which occurred in The Bronx on August 21, 1982 near the intersection of Brady and Holland Avenues following an altercation between defendant Shankman and plaintiffs, Andre Mon and his brother, Rodney Mon. Shankman, a recently appointed police officer, while off-duty, shot his service revolver twice, hitting both plaintiffs and injuring Andre Mon seriously. Plaintiffs were arrested but all charges against Andre Mon were dismissed and the charge against Rodney Mon resulted in acquittal. Their damage claims against the City for false arrest and for personal injuries on the theory of negligent hiring were tried together before a jury.

The jury awarded damages for false arrest against the City to Andre Mon, only. In submitting the case to the jury, the court charged, without objection, that if the jury found that the City, by its positive actions following the incident, had ratified defendant Shankman's conduct in making the arrest it could bring in a verdict against the City. In an answer to one of several interrogatories, the jury specifically found that the City had ratified Shankman's arrest of Andre Mon. In exercising our limited review of this issue we conclude that the Appellate Division properly held that there was sufficient evidence in the record for submission of the ratification question to the jury. Further discussion of the false arrest claim is unwarranted.

Nor is it necessary to detail the facts surrounding the shooting incident. Suffice it to say, we find more than enough evidence in the record for the jury to have concluded that Shankman's behavior was not acceptable police conduct and to support its findings, in answers to other special questions, that he was not justified in shooting either plaintiff. A discussion of the City's claim of immunity from liability for negligent hiring, however, requires a brief summary of the facts surrounding Shankman's appointment as a police officer.

In October 1981, Shankman applied for appointment to the New York City Police Department. In his original application, he omitted a 1979 arrest involving his participation in an incident at a Rite-Aid drugstore and his previous employment at that store. The incident, which involved damage to equipment in the store from a shot fired by Shankman's companion, resulted in Shankman's conviction for disorderly conduct on his plea of guilty. Police Investigator Kelly who investigated Shankman's family, education, military and employment background, found nothing unfavorable. Notwithstanding the 1979 arrest and the arresting officer's strenuous objection to Shankman's application, Officer Kelly, based on his review of the entire applicant file, recommended Shankman's approval and forwarded his recommendation and the file to Lieutenant Springer for his action. Upon his review of the applicant's file, Lieutenant Springer approved Shankman's appointment.

At the conclusion of all the evidence, the City renewed the motion it had reserved at the close of plaintiffs' case to dismiss the negligent hiring claims, without submissions to the jury, for failure to establish a prima facie case, citing, inter alia, Haddock v. City of New York, (140 A.D.2d 91, 532 N.Y.S.2d 379) and (McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419). The court reserved decision on the City's dismissal motion until after the jury's verdict and denied that motion as well as the City's postverdict motion under CPLR 4404(a). In the appeal here, the central focus is whether the City may claim governmental immunity for the hiring decisions of its servants in light of our decision in Haddock v. City of New York, (75 N.Y.2d 478, 554 N.Y.S.2d 439, 553 N.E.2d 987). For reasons to be stated, we hold that under the rationale of Haddock and our prior decisions on governmental immunity (see, e.g., Arteaga v. State of New York, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84; and Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182) the negligent hiring causes of action should have been dismissed as a matter of law either before submission to the jury or on the Court's reserved decision after the verdict was returned.

II

Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment (see, Arteaga v. State of New York, supra, 72 N.Y.2d at 216, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Tarter v. State of New York, supra, 68 N.Y.2d at 518-519, 510 N.Y.S.2d 528, 503 N.E.2d 84). If these functions and duties are essentially clerical or routine, no immunity will attach (see, Tango v. Tulevech, supra, 61 N.Y.2d at 40-42, 471 N.Y.S.2d 73, 459 N.E.2d 182). As we stated in Haddock v. City of New York (supra):

"[W]hen official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action (see, Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182; Arteaga v. State of New York, 72 N.Y.2d 212, 216, 532 N.Y.S.2d 57, 527 N.E.2d 1194; Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63). Whether absolute or qualified, this immunity reflects a value judgment that--despite injury to a member of the public--the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." (Id., 75 N.Y.2d at 484, 554 N.Y.S.2d 439, 553 N.E.2d 987.)

If a functional analysis of the actor's position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion. Obviously, governmental immunity does not attach to every action of an official having discretionary duties but only to those involving an exercise of that discretion (see, Haddock v. City of New York, 75 N.Y.2d 478, 484-485, 554 N.Y.S.2d 439, 553 N.E.2d 987, supra).

In determining whether plaintiff's negligent hiring claims must fail because of the City's governmental immunity, we look first at the functions and duties of Investigator Kelly and Lieutenant Springer, the two police officers responsible for hiring Shankman. Unquestionably, the responsibilities of Officers Kelly and Springer for investigating and evaluating the background and qualifications of police officer candidates and making the recommendations and final decisions for such appointments entailed the exercise of some judgment and discretion. We have no difficulty in concluding that these functions and duties were sufficiently discretionary to call for immunity. Haddock v. City of New York (supra) supports this conclusion.

In Haddock (supra), we decided that the City could be held liable for its negligent hiring and retention of a parks department employee who raped a child. But we did not decide in Haddock that the actions of a municipality in hiring or retaining an...