Purdy v. Public Adm'r of Westchester County

• Decision Date: 20 April 1987
• Parties: George W. PURDY, Appellant-Respondent, v. The PUBLIC ADMINISTRATOR OF the COUNTY OF WESTCHESTER, etc., Respondent-Appellant, Bethel Methodist Home, et al., Defendants-Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 407

514 N.Y.S.2d 407

127 A.D.2d 285

George W. PURDY, Appellant-Respondent, v. The PUBLIC ADMINISTRATOR OF the COUNTY OF WESTCHESTER, etc.,

Respondent-Appellant,

Bethel Methodist Home, et al., Defendants-Respondents, et

al., Defendant.

Supreme Court, Appellate Division,

Second Department.

April 20, 1987.

Keegan & Keegan, White Plains (Norman Bard, of counsel), for appellant-respondent.

Barry, McTiernan & Moore, New York City (Michael F. Close, of counsel), for respondent-appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Kevin M. Loftus, of counsel), for defendant-respondent Bethel Methodist Home.

Mead, Dore & Voute, P.C., White Plains (Emanuel Thebner, of counsel, Richard L. Magro, on the brief), for defendant-respondent Elio Argenziano.

Before MOLLEN, P.J., and THOMPSON, RUBIN and SPATT, JJ.

RUBIN, Justice.

On November 9, 1979, the plaintiff, who was a customer at a gasoline station in Brewster, New York, sustained serious injuries when a car owned and operated by Emily Shaw smashed into the station at a high rate of speed. On the date of the accident, the 73-year-old Shaw was a voluntary resident of the defendant Bethel Methodist Home (hereinafter Bethel). Bethel is a health-related facility (see, Public Health Law § 2801[3] ). Such a facility provides lodging, board, and physical care to its residents, including, but not limited to, the recording of health information, dietary supervision, and supervised hygienic services (see, Public Health Law § 2801[4][b] ). A health-related facility resident requires institutional care and services above the level of room and board, but below that of a skilled nursing facility or hospital (10 NYCRR 414.1[c][8] ).

On October 11, 1979, Shaw was admitted to Bethel following a period of hospitalization and rehabilitation for a "cerebral vascular accident" (a stroke) suffered in July 1979. According to the Department of Health's regulations, a medical history and a physical examination of the resident is to be performed no later than one week after the resident's admission to the facility to ascertain her needs and the level of care required. The examining physician is to record in the resident's chart his findings, diagnoses and initial orders for treatment, which include orders for medication, diet, permitted level of physical activity, and recommendations, if necessary, for physical therapy, occupational therapy, supportive activities and other resident care services (see generally, 10 NYCRR 741.1[k] ). On October 12, 1979, the defendant Dr. Elio Argenziano, Bethel's Medical Director, the person responsible for overseeing the health care of all of Bethel's residents, took Emily Shaw's medical history, conducted the admission physical examination and issued an order authorizing Shaw to leave Bethel unaccompanied.

Subsequent to the accident, the plaintiff commenced suit against Emily Shaw, Bethel and Dr. Argenziano to recover damages for personal injury. Thereafter, Shaw died of causes unrelated to the accident and the Public Administrator of the County of Westchester was appointed as administrator of her estate.

The gravamen of the plaintiff's claim against Bethel and Dr. Argenziano is that both were negligent in failing to prohibit Shaw from operating a motor vehicle away from her place of residence at Bethel when those defendants knew or should have known that Shaw had a medical condition which posed a serious risk of "blacking out" or "fainting" and that the accident was due to the fact that Shaw fainted or blacked out at the wheel of her motor vehicle. The plaintiff sought to prove at trial that the medical judgment of Dr. Argenziano, which allowed Shaw to leave the facility unaccompanied and without any restrictions having been imposed upon her operation of a motor vehicle, was erroneous and not founded upon careful examination. The plaintiff additionally contends that Dr. Argenziano, an agent of Bethel and as Shaw's physician, had an affirmative duty owed to the plaintiff to warn Shaw not to drive due to her medical condition. Dr. Argenziano admitted that he never asked Shaw if she owned or operated a motor vehicle prior to the date of the accident.

The jury returned a verdict in favor of the plaintiff against all the defendants and apportioned 10% liability to the Estate of Shaw, 30% liability to Bethel and 60% liability to Dr. Argenziano. The trial judge set aside the verdict and directed judgment in favor of Bethel and Dr. Argenziano on the ground, inter alia, that the plaintiff failed to establish the element of proximate cause.

We affirm for the reason that neither Bethel, nor Dr. Argenziano, its Medical Director, owed a duty to the plaintiff, a member of the public, either to prevent Shaw, a resident, from operating a motor vehicle off the facility's premises or to warn Shaw against driving.

It is well established that before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to plaintiff (Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99). In the absence of duty, there can be no breach of duty and without a breach there is no liability (Kimbar v. Estis, 1 N.Y.2d 399, 405, 153 N.Y.S.2d 197, 135 N.E.2d 708; Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied, 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640). The issue of whether Bethel and Dr. Argenziano owed a duty to the plaintiff to supervise and control Emily Shaw is a question of law (see, Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922; Strauss v. Belle Realty Co., 65 N.Y.2d 399, 408, 492 N.Y.S.2d 555, 482 N.E.2d 34; Cartier v. Long Is. Coll. Hosp., 111 A.D.2d 894, 490 N.Y.S.2d 602; Semler v. Psychiatric Inst., 538 F.2d 121, cert. denied sub nom. Folliard v. Semler, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90).

It is a generally accepted tenet of New York law that a duty directly assumed for the benefit of a particular person or entity does not extend to third parties who were not the intended beneficiaries of the subject undertaking. In the absence of privity, fraud, collusion or other special circumstances, New York authorities do not impose liability upon a professional for injuries sustained by members of the general public who might potentially be affected by negligence in the promised performance (Calamari v. Grace, 98 A.D.2d 74, 469 N.Y.S.2d 942). While the absence of privity does not foreclose recognition of a duty, it is a relevant factor for courts to consider "in fixing the orbit of duty 'to limit the legal consequences of wrongs to a controllable degree' (Tobin v Grossman, 24 NY2d 609, 619 [301 N.Y.S.2d 554, 249 N.E.2d 419] see also, Howard v Lecher, 42 NY2d 109 [397 N.Y.S.2d 363, 366 N.E.2d 64] ), and to protect against crushing exposure to liability (see, Pulka v Edelman, 40 NY2d 781 [390 N.Y.S.2d 393, 358 N.E.2d 1019] supra; Ultramares Corp. v Touche, 255 NY 170 )" (see, Strauss v. Belle Realty Co., supra, at pp. 402-403, 492 N.Y.S.2d 555, 482 N.E.2d 34). The underlying principle for the tenet that there is no liability for injuries sustained by members of the general public who might potentially be affected by negligence in the promised performance is that the imposition of a duty upon one unable to control the person whose acts resulted in the plaintiff's injury would be unduly onerous (Pulka v. Edelman, supra; Waters v. New York City Hous. Auth., supra; Calamari v. Grace, supra ).

A duty to control others arises only in the following special relationships: "(1) '[t]he relationship between the defendant and the person who threatens the harm to the third person may be such as to require the defendant to attempt to control the other's conduct' or (2) 'there may be a relationship between the defendant and the person exposed to harm which requires the defendant to afford protection from certain dangers including the conduct of others' " (Pulka v. Edelman, supra, at p. 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019, quoting from Harper & Kime, Duty to Control the Conduct of Another, 43 Yale LJ 886, 887-888).

In the instant case, Bethel contracted to provide certain care and services for its resident Emily Shaw. Additionally, residents were third-party beneficiaries of the contract between Bethel and its Medical Director, wherein Dr. Argenziano promised to oversee the health care of all residents. However, there is no privity of contract between the plaintiff and either Bethel or Dr. Argenziano. As a customer at a filling station, the plaintiff was not readily identifiable, but was merely a member of the general public. Consequently, neither Bethel nor Dr. Argenziano had a special relationship to the plaintiff.

Although both a health care facility and its medical director, who conducts an admission physical and issues orders of treatment, have a relationship to a resident of the facility, that relationship is not sufficient to give rise to an affirmative duty to protect members of the general public from the tortious acts of a resident committed off the facility's premises, due to the absence of a lawful basis to restrain the freedom of a licensed resident from operating a motor vehicle (see, Harland v. State of Calif., 75 Cal.App.3d 475, 142 Cal.Rptr. 201; Cartier v. Long Is. Coll. Hosp., 111 A.D.2d 894, 490 N.Y.S.2d 602, supra ).

In actions commenced by a member of the public to recover damages for injuries proximately caused by the defendant's negligent supervision of the tort-feasors, courts in...