Parvi v. City of Kingston

• Decision Date: 05 April 1977
• Citation: 41 N.Y.2d 553,394 N.Y.S.2d 161,362 N.E.2d 960
• Parties: , 362 N.E.2d 960 Donald C. PARVI, Appellant, v. CITY OF KINGSTON, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 161

394 N.Y.S.2d 161

41 N.Y.2d 553, 362 N.E.2d 960

Donald C. PARVI, Appellant, v. CITY OF KINGSTON, Respondent, et al., Defendants.

Court of Appeals of New York.

April 5, 1977.

David M. Barnovitz, Kingston, for appellant.

Francis X. Tucker and Vernon Murphy, Kingston, for respondent.

FUCHSBERG, Justice.

This appeal brings up for review the dismissal, at the end of the plaintiff's case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v. Bee Line, 1 N.Y.2d 169, 172, l51 N.Y.S.2d 633, 634, 134 N.E.2d 457, 458; 10 Carmody-Wait 2d, N.Y. Prac., § 70:359, p. 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant's own employees, especially since plaintiff's own recollection of the events was less than satisfactory.

Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two poli officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

In the course of their examinations before trial, read into evidence by Parvi's counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking" and showed "the effects of alcohol". They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure", transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out". This was the first time Parvi had ever been there. En route they had asked to be left off at another place, but the police refused to do so.

No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing" of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured, Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against Darling, who originally had been joined as an additional defendant.)

the cause of action for false imprisonment

With these facts before us, we initially direct our attention to Parvi's cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v. State of New York,37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314, where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged".

Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men's request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town" because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958; Robalina v. Armstrong, 15 Barb. 247; Herring v. Boyle, 1 Cr.M. & R. 377, 149 Eng. Rep. 1126; Meering v. Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col.L.Rev. 847), Broughton, supra, 37 N.Y.2d p. 456, 373 N.Y.S.2d p. 92, 335 N.E.2d p. 313 has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d ( § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff's sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi's responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 312, supra; Woodson v. New York City Housing Auth., 10 N.Y.2d 30, 217 N.Y.S.2d 31, 176 N.E.2d 57).

Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city's argument runs that a police officer is not required to arrest for drunkenness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was done here.

In Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245, we reflected on the scope of the...