Rodriguez v. City of New York

• Decision Date: 25 March 1993
• Citation: 189 A.D.2d 166,595 N.Y.S.2d 421
• Parties: Mariano RODRIGUEZ and Doris Rodriguez, Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 421

595 N.Y.S.2d 421

189 A.D.2d 166

Mariano RODRIGUEZ and Doris Rodriguez, Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 25, 1993.

Anthony M. Dillof, of counsel (Stephen J. McGrath, with him, on the brief; O. Peter Sherwood, attorney), for defendant-appellant.

Gerald E. Singleton, of counsel (Frankfurt, Garbus, Klein & Selz, P.C., attorneys), for plaintiffs-respondents.

Before CARRO, J.P., and WALLACH, ASCH and KASSAL, JJ.

ASCH, Justice.

On March 4, 1984, plaintiff Mariano Rodriguez was an innocent passerby during a shootout between the police and one Ramon Flores. The incident began when a group pursued Mr. Flores south on Jerome Avenue, throwing bottles and garbage cans at him. A crowd was attracted by the commotion and at some point Flores drew a gun and began firing at his assailants. One of these individuals, Lazar Arioza, was wounded by Flores.

Officer Joglar testified that he was in civilian clothes, on anti-crime detail, at the time of the incident. When he arrived at the intersection of Burnside and Jerome Avenues, he saw a crowd of 50 to 75 people watching something. Joglar heard shots fired. He left the car and ran toward the shots, with his radio in one hand, his shield around his neck, and his off-duty gun in the other hand, a .38-caliber revolver. Joglar saw Arioza laying in the middle of the street. He saw Flores a few feet away from Arioza, put something in his belt, possibly a gun, and start walking away. After walking just three to four feet, Flores returned to Arioza, and pulled a gun.

Upon seeing the gun, Joglar yelled "police" and transmitted the information over his radio. Flores fired a shot at Joglar. Joglar took cover and so did Flores. The two exchanged shots until they ran out of bullets.

After Joglar had fired all his bullets, he heard shots fired from further down the street, to his right and to the southwest of his position. When the shooting stopped, Flores fled. Officers Joglar and Young chased Flores. Flores was apprehended by other officers without further incident.

Officer Young testified. At the time of the incident, Young was in a statue store working on a robbery investigation. He was in plainclothes and carried his off-duty .38 caliber revolver.

Young heard shots and exited the store and saw the crowd to his left. He took out his gun but did not display his shield. Young saw Flores walking at a rapid pace away from the crowd, going southbound on Jerome Avenue. He decided to follow Flores and walked in the same direction on the opposite (west) side of the street. Flores went almost 100 feet toward 179th Street before he turned to walk back, and Young, who had crossed the street and gotten ahead of Flores, followed him back. Flores stopped near the Post Office, brought up his gun, and started firing at Joglar. Young stated that he yelled "police" only because Joglar was an officer. Young stated that he took no action earlier to apprehend Flores because he thought Flores might have been an undercover police officer.

As soon as Young yelled "police", Flores turned and they exchanged several shots, with Young crouched behind a car.

Isabello Nieves, a postal carrier, testified to events which were consistent with Joglar's testimony. Nieves saw Flores shoot Arioza while standing in the middle of the street and immediately saw Joglar approach, with his badge around his neck, and yell "police officer, stop." Nieves said Flores never walked toward the corner of 179th Street before the police started firing. Nieves saw another plainclothes officer, but it is clear from his testimony, he was speaking of Joglar's partner, Officer Gardner.

Prior to the incident, plaintiff, Mariano Rodriguez, had been in a hardware store, on the west side of Jerome Avenue. He crossed the street to the east side. He recalled seeing a lot of people "screaming and yelling and running", but heard no shots and saw no one with a gun at any time. He ran straight across the street toward the statue store. He was shot and he felt a burning pain upon approaching the west sidewalk.

Detective Melendez who was the first person to interview Young testified that contrary to Young's version, Young told him that he was on the west side of Jerome Avenue when he first started firing. Melendez testified that Young fired "most of his shots from the west side of the sidewalk and then ... he started to approach where [Flores] was on the opposite side of the street and ... all he had was one shot left and he shot from just in front of the sidewalk where he was, then he ran out of bullets."

Captain Karpel was assigned to investigate the incident. He was never told that Young had followed Flores. He was told that when Young first got out on the sidewalk, he went toward the crowd and the area of the shooting. Karpel noted that his report and Detective Melendez's disagreed where Young was when he began to fire. Karpel testified that Young, Joglar and Flores were all using .38 caliber guns.

A bullet removed from Rodriguez was marked into evidence and was identified as a round-nose bullet. Karpel explained, in contrast to round-nosed bullets, semi-wad cutter bullets were flat-nosed. Karpel concluded that Officers Young and Joglar were using authorized ammunition during the incident: semi-wad cutter bullets. Three bullets were recovered from the scene of the crime. However, those bullets were destroyed by the Police Department in 1989 prior to trial.

Officer Mays, who also investigated the incident, testified that regulations of the Department require that officers use standard issue ammunition in both their on-duty and off-duty revolvers. However, Mays also testified that there are private firing ranges where police could obtain non-standard ammunition.

Robert DiGrazia was qualified as an expert on procedures for firearms discharge and shooting scene reconstruction. He was qualified to testify whether the actions of the officers violated Departmental guidelines.

DiGrazia testified that he thought Officer Young's actions fell below accepted standards of the NYPD because he had the justification and the opportunity to stop Flores. The decision to shoot did not follow NYPD standards because the likelihood of striking Flores would be minimal compared to the danger to the other people in the area. Finally, DiGrazia stated that even if Officer Young had shot to save a life, this would be improper because the danger to the public exceeded the opportunity of apprehending Flores.

On cross-examination, DiGrazia noted that it is proper police procedure for an officer to use a firearm in the face of deadly force to save his own life or the life of another unless such action creates a danger to people in the immediate area.

Finally, DiGrazia testified that it was "absolutely" improper for the Police Dept. to have disposed of some of the ballistics evidence recovered at the scene, since it could have shed light on what type of bullets were fired by the police.

To counter the plaintiff's expert, the City presented Inspector Timoney. Timoney stated, in part, that "The first admonition to an officer is that you use all reasonable means before using your firearm." The second thing is you will not fire warning shots; "you cannot discharge your gun at a moving vehicle ... unless the occupants of the moving vehicle were using deadly physical force".

Counsel for the City argued that the police could not have shot Rodriguez because they were using semi-wad cutter bullets and Rodriguez was shot with a round-nosed bullet. The City also questioned the plausibility of plaintiff's account in which Rodriguez allegedly stood in front of the Post Office for ten minutes, did not notice the fight between Flores and Arioza, and then crossed the street to be shot by Officer Young. The City defended Officer Young's judgment in not stopping Flores immediately after seeing him.

Plaintiff questioned the credibility of Officer Young's version of events. He argued that Young did not act properly in failing to stop Flores and that this was the cause of the subsequent shoot out. Plaintiff also argued that Officer Young shot at Flores and hit Rodriguez. This was reckless shooting and in violation of the guidelines.

In the pre-charge conference, the court denied the City's request for an instruction that the City could not be held liable for errors in judgment. The court also rejected the City's request to charge the jury on "special duty" principles of sovereign immunity.

The court instructed the jury to return a general verdict, supplemented with answers to questions concerning negligence, causation and damages. With respect to the issue of negligence, the trial court charged the jury that it might impose liability on a simple finding of negligence. Notably, the court's charge did not incorporate the parties' factual contentions with respect to the legal principles charged or set forth in plaintiff's theories of liability.

At trial plaintiff advanced two scenarios which it claimed amounted to negligence: (a) that Officer Young negligently fired at Flores and hit Rodriguez in the course of the exchange of fire between the police and Flores, and (b) that Officer Young negligently failed to stop and arrest Flores before the exchange of fire between the police and Flores as a result of which Rodriguez was accidently hit.

The City argues that under the "special relationship" doctrine, a municipality may not be held liable in negligence for a police officer's failure to arrest a criminal absent the establishment of a special relationship with the plaintiff. (See De Long v. County of Erie, 60 N.Y.2d 296, 304, 469 N.Y.S.2d 611, 457 N.E.2d 717.)

We agree that pursuant to the special relationship doctrine, the trial court should not have permitted the jury to consider plaintiff's alternative theory of liability that Officer Young negligently failed to stop...