Ruotolo v. State

• Decision Date: 02 September 1988
• Docket Number: No. 70726,70726
• Parties: Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 668

532 N.Y.S.2d 668

141 Misc.2d 111

Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants, v. The STATE of New York, Defendant.

Claim No. 70726 Court of Claims of New York.

Sept. 2, 1988.

Lysaght, Lysaght & Kramer, P.C. (James J. Lysaght, Mineola, and Raymond E. McAlonan, of counsel), for claimants.

Robert Abrams, Atty. Gen. (Allen J. Goodman, New York City, of counsel), for defendant.

GERARD M. WEISBERG, Judge.

On February 14, 1984 parolee George Agosto shot and killed police officer Thomas Ruotolo and seriously injured officers Hipolito Padilla and Tanya Brathwaite as they attempted to apprehend him. Agosto it is alleged, was at large because his parole officers violated section 259-i(3) of the Executive Law and section 8004.2 (9 NYCRR 8004.2) of the regulations promulgated thereunder by failing to report Agosto's arrest for burglary to the Parole Board. The issue before us is whether this asserts a cause of action in light of Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84, Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 and Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, all of which noted but left unanswered this question.

As alleged by claimants, on March 26, 1979, Agosto was sentenced concurrently to a term of from 5 to 15 years for manslaughter and 0 to 7 years for criminal possession of a weapon. After receiving credit for time served under a prior youthful offender adjudication, he became eligible for parole and was released on August 23, 1982. He was assigned to the Bronx West Parole Office.

Agosto reported to this parole office until July 5, 1983 when he was taken into custody by the police and charged with burglary and resisting arrest. Although his parole officers were notified of these events, they failed to report the violations to the Parole Board in contravention of 9 NYCRR 8004.2. ¹ It is claimants' theory that had the Board been notified, it would have revoked Agosto's parole, thereby preventing the tragedy. ² The State, relying on Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84, supra and Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra moves for summary judgment dismissing the claim.

In Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84, supra, claimants who were shot by parolees sued the State on the theory that the Parole Board had failed to act in accordance with law in releasing the assailants. Specifically, it was asserted that the Board omitted to perform the supposedly ministerial act of considering the parole release guidelines. The Court of Appeals dismissed the claims holding the Board absolutely immune when engaged in the judicial task of deciding whether to grant parole. With respect to the victims' additional claim that the parole officers had been negligent in supervising the parolees after their release, the Court held it equally deficient "because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection." ( Supra, at 519, 510 N.Y.S.2d 528, 503 N.E.2d 84.)

Thus, the Court differentiated between the governmental tasks of granting parole and supervising parolees. The former was labelled judicial and granted absolute immunity; the latter was treated as a police function which could be actionable only upon the breach of a specifically assumed and relied on duty.

This relatively straight-forward pronouncement was rendered less clear, however, by Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128, supra. In Eiseman, the victim was murdered by a parolee. Attempting to distinguish Tarter, the claimant's estate alleged that the parole officer had violated a statutory duty in failing to revoke the assailant's parole, thereby constituting negligence as a matter of law. The Court of Appeals first found as a factual matter that no statutory violation had taken place. With respect to common law negligence, the Court stated: " 'The acts of the corrections officials and parole supervisors in monitoring Campbell's release involved the kinds of policy determinations which are of a discretionary or quasi-judicial nature and therefore insulated from liability.' " ( Supra, at 184, 518 N.Y.S.2d 608, 511 N.E.2d 1128, quoting Eiseman v. State of New York, 109 A.D.2d 46, 57-58, 489 N.Y.S.2d 957.)

Thus, in Eiseman, parole supervision was apparently converted from a police function to a discretionary or quasi-judicial function and a no-duty analysis became an immunity analysis. The effect a statutory violation might have on the equation was left unanswered.

Eiseman was followed by Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra. In Santangelo, police officers who were injured by an escaped mental patient brought suit on two theories: that the State was negligent in permitting the assailant to obtain his freedom and that it violated Department of Mental Hygiene regulations requiring notice of the escape to be provided to the police.

With respect to the common law theory, the Court extended the "fireman's rule" to police officers injured in the line of duty, holding that public policy precluded recovery. Inasmuch as police are hired to confront and deal with negligently created emergencies, to allow recovery, the Court reasoned, would be anomalous, resulting "in the payment of damages by the public for injuries sustained by the experts it employs to deal with such situations." ( Supra, at 398, 526 N.Y.S.2d 812, 521 N.E.2d 770.)

As to the claim based on the breach of the regulation, the Court affirmed the findings below that there had been no violation, or if there had been, it was not the proximate cause of claimants' injury because the police had received actual notice of the escape. (Id.)

Here, claimants, including the deceased, were police officers shot in the line of duty while arresting a felon. We therefore need not decide whether the parole officials were engaged in activity which was quasi-judicial or discretionary, or whether the harm resulted from a ministerial error or simply the failure to provide police-type protection. Santangelo bars relief based on any common law theory of negligent supervision on public policy grounds. Unresolved by Santangelo, Eiseman and Tarter, however, is a question which we must decide: whether the result is the same where liability would be predicated on the violation by parole officers of a specific regulation.

Statutes and regulations play several roles in the calculus of negligence. Where a duty otherwise exists, a statute may provide a minimum level of due care, the breach of which will constitute negligence as a matter of law. (Prosser & Keeton, Torts § 36 at 220; PJI 2:25.) Similarly, the violation of a regulation may be some evidence of negligence. (PJI 2:29.)

Where a common law duty does not exist (or even where it does), statutes and regulations may provide an independent basis for liability. (See, e.g., Labor Law § 240; General Municipal Law § 205-a; Real Property Law § 235-b.)

Whether the violation of a statute or regulation which prohibits or mandates specified conduct provides a cause of action to a person injured as a result of its breach must to a great extent depend on the intent of the Legislature. ( Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459.)

In order to determine such intent, the factors relied on include whether the enactment: prohibits conduct or directs the providing of a municipal service; is directed to or at a governmental or a non-governmental entity; is for the benefit of society in general or directly for a particular class of individuals; and most importantly, whether the Legislature has explicitly provided for such a right. (Id., see also, Carpenter v. City of Plattsburgh, 105 A.D.2d 295, 484 N.Y.S.2d 284, affd. on opn. below 66 N.Y.2d 791, 497 N.Y.S.2d 909, 488 N.E.2d 839.)

When the Legislature decides to provide a private cause of action for the breach of a statute or regulation, it knows how to unambiguously do so. For example, Alcoholic Beverage Control Law § 65(2) prohibits the sale of alcoholic beverages to visibly intoxicated persons and General Obligations Law § 11-101 provides that anyone injured in violation thereof shall have a right of action against the seller. ( See, Mitchell v. The Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21.) Highway Law § 102 provides that each county is under a duty to maintain its roads and highways and Highway...