Pascarella v. City of New York

• Decision Date: 16 March 1989
• Citation: 146 A.D.2d 61,538 N.Y.S.2d 815
• Parties: Rocco J. PASCARELLA, Plaintiff-Respondent, v. The CITY OF NEW YORK and New York City Police Department, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 815

538 N.Y.S.2d 815

146 A.D.2d 61

Rocco J. PASCARELLA, Plaintiff-Respondent, v. The CITY OF NEW YORK and New York City Police Department Defendants-Appellants.

Supreme Court, Appellate Division First Department.

March 16, 1989.

Norman E. Frowley, of counsel (Morris J. Eisen, P.C., New York City, attorney) for plaintiff-respondent.

Ellen B. Fishman, of counsel (Stephen J. McGrath with her on the brief; Peter L. Zimroth, New York City, attorney) for defendants-appellants.

Before SULLIVAN, J.P., and CARRO, MILONAS and ELLERIN, JJ.

MILONAS, Justice.

The instant action was commenced by a New York City police officer to recover damages for personal injuries sustained by him when a terrorist bomb exploded outside Police Headquarters at One Police Plaza in downtown Manhattan. Defendants-appellants City of New York and the New York City Police Department appeal from a judgment of the Supre Court entered upon a jury verdict in favor of plaintiff in the amount of $1,750,000 plus interest, costs and disbursements, 135 Misc.2d 719, 516 N.Y.S.2d 579. Following the verdict, defendants unsuccessfully moved for an order setting aside the verdict. An examination of the record herein reveals that the evidence at trial does not establish any liability on the part of the municipality, and, accordingly, the judgment should be reversed and the complaint dismissed.

This case involves the second of four bombs that exploded on New Year's eve of 1982 in lower Manhattan and Brooklyn. The bombs were planted by the FALN, a Puerto Rican terrorist group. The particular device in question here was placed outside a closed entrance on the north side of Police Headquarters, situated in a sixteen story, brick building owned by the City of New York. One Police Plaza, the site of the structure, is located less than half a mile from 26 Federal Plaza, where the first bomb went off. A third bomb later exploded at St. Andrew's Plaza and the fourth at the United States Courthouse for the Eastern District of New York in Brooklyn. On the night of the bombings, plaintiff Rocco J. Pascarella, a veteran of approximately twelve years of service in traffic control, was assigned to the Fifth Precinct as a member of the Headquarters Security Unit (HSU) to which he had been transferred at his own request some two weeks previously. Although plaintiff underwent a three day orientation session with respect to the various posts around the headquarters building, he never received any specialized training in detecting or handling explosive devices.

Anonymous bomb threats are apparently a frequent occurrence at Police Headquarters, but there is no indication that a bomb had ever actually exploded at Police Plaza prior to the present incident. Yet, anonymous warnings are treated seriously by the Police Department, which has developed a standard procedure to deal with such threats. Thus, when a bomb warning is called in, ordinary patrol officers are sent to the scene, and any police officer can search for suspicious packages that might contain explosive devices. Only members of the Emergency Services Unit, however, are supposed to touch or disturb an explosive device. Consequently, if a police officer discovers a possible explosive device, he is required to notify his superior officer who, in turn, must contact the Emergency Services Unit. This procedure is outlined in the officer's Patrol Guide and is also part of the normal training instruction provided to all police officers. In addition to the Emergency Services Unit, the Police Department has a special Bomb Squad.

It is the function of HSU members to maintain a high level of security at, and around the perimeter of, One Police Plaza for the protection of both the employees of the Police Department and the public. At the beginning of each tour of duty, the HSU police officers are assigned to various numbered posts, which may be either inside or outside of Police Headquarters. Sergeant John J. Cashman, who was plaintiff's supervisor on the night of December 31, 1982, assigned plaintiff to post 5, which extends along Madison Street adjacent to the headquarters building. Outside posts, such as numbers 4, 5, and 6, are roving posts as opposed to fixed posts where the officers largely remain at the same spot. Prior to sending plaintiff out to perform a perimeter check, Sergeant Cashman did not call for assistance from the Emergency Services Unit since there had not been any recent warning that a bomb was set to go off at police headquarters nor was there a report of any suspicious packages. He was aware that an explosion causing no injuries had taken place at nearby Federal Plaza and communicated that fact to the officers under his command. Sergeant Cashman, therefore, advised his officers to be careful and indicated that there could be another bomb planted in the vicinity of the police building. He was unable to convey this information personally to plaintiff, who was then on a meal break, but directed another officer to relay the appropriate message to plaintiff.

After plaintiff was given his instructions by the other officer at about 9:45 p.m., he began to conduct a perimeter check of Police Headquarters. In that regard, he left the building through the main entrance and walked toward the north entrance where he observed a quantity of garbage at the top of the stairs. An accumulation of paper bags and other refuse in that area was not at all unusual. While there were lights around the building, it was dark, and plaintiff used a flashlight. He noticed a bag some ten to fifteen feet away and started up the stairs to get a closer look. When he was approximately two feet from the bag, he saw that it contained a Kentucky Fried Chicken box and concluded that the object was simply another piece of garbage. Plaintiff thereupon turned to walk away, and his next recollection was of being in the hospital. The bomb, which detonated at 9:55 P.M., resulted in extensive damage to the entrance area. Plaintiff was found lying on the ground, his left lower leg having been blown off; he had also sustained other injuries.

In delivering his charge to the jury at the conclusion of the trial, the judge quoted certain excerpts from one of the exhibits, a manual entitled "A Functional Guide for Fire Security Officers and Deputy Fire Security Officers." According to the court, "[i]f you find that the defendants violated any of these paragraphs that I read to you of these regulations, you may consider those violations as evidence of the breach of the duty of care, meaning negligence, that is owed or that was owed to Mr. Pascarella, provided further that such a violation was a proximate cause of the accident...." The Functional Guide had been prepared by Sergeant Allan Wecker under the auspices of Lieutenant Thomas V. O'Reilly, who was the commanding officer of the HSU from January 1976 through January 1979. This guidebook was intended to establish a uniform set of procedures for officers to follow in the event of a fire, explosion or bomb threat at Police Headquarters. One of the main purposes in formulating this booklet was to protect the safety of police officers and other occupants of One Police Plaza.

Lieutenant O'Reilly testified at trial that in his opinion, the situation existing on the night of December 31, 1982 presented the sort of "unusual circumstance" referred to in the Functional Guide warranting the notification of the Emergency Services Unit or even the Bomb Squad. Moreover, Officer Jose Landrau stated that the Emergency Services Unit, the Bomb Squad or the Arson Explosion Squad were all better equipped to search for bombs than the HSU. Plaintiff also called as a witness Kenneth J. Dudonis, a former Detective with the New York City Bomb Squad and current Director of the Criminal Justice Institute. In the view of Dudonis, it was a violation of accepted police procedure to send an individual such as plaintiff, who was unfamiliar with the area, to undertake a perimeter search, and it was also against proper security planning to permit debris to accumulate outside of Police Headquarters.

The portions of the Functional Guide which the court included in its instructions to the jury are as follows:

Search Procedure in the Event of a Bomb Threat

1. In the past, an overwhelming percentage of bomb threats have turned out to be just threats. However, in the past decade the trend is that more of these threats are materializing into actual bombings. In its initial stage it is practically impossible to determine whether a bomb threat is meant to be a form of verbal harassment or an instrument of physical destruction. Therefore, in order to give optimum consideration toward the safety of our employees, it is imperative that we treat every threat as the real thing, until it can be determined otherwise.

2. A practical and effective approach to a bomb threat is to have the building searched by personnel familiar with the specific areas to be searched. The terrorist does not label the bomb with the words "bomb" or "explosives". More often the bomb is secreted to blend with the environment. A bomb can be camoflaged in many ways. Some devices may be the size of a pack of cigarettes, others the size of a suitcase. The object of the search can vary in size and shape. Therefore, areas that are to be searched should be searched by employees that are familiar with the area, so that anything foreign or new to that particular premises may be easily spotted.

10. In the event of a "bomb threat" of an impending serious nature, or if any unusual circumstances dictates, additional personnel shall be requested for perimeter patrol from the Fifth Precinct.

11. If a search of the building produces positive results and a suspected explosive device is found the Fire Safety Director shall (B) have the Emergency Service Unit standing by, respond to the location of the suspected device.

In denying defendants' subsequent motion to set...