Ward v. State

• Decision Date: 02 April 1975
• Docket Number: Nos. 57157 and 57200,s. 57157 and 57200
• Citation: 81 Misc.2d 583,366 N.Y.S.2d 800
• Parties: Joseph T. WARD and Barbara Ward, Claimants, v. The STATE of New York. William HEEGAN and Mary Heegan, Claimants, v. The STATE of New York.
• Court: New York Court of Claims

Page 800

366 N.Y.S.2d 800

81 Misc.2d 583

Joseph T. WARD and Barbara Ward, Claimants, v. The STATE of New York.

William HEEGAN and Mary Heegan, Claimants, v. The STATE of New York.

Claim Nos. 57157 and 57200.

Court of Claims of New York.

April 2, 1975.

Crowe, McCoy & Agoglia by John P. Flaherty, Jr., Mineola, for claimants Joseph T. Ward and Barbara Ward.

Dean & Falanga by David J. Dean, Carle Place, for claimants William Heegan and Mary Heegan.

Louis J. Lefkowitz, Atty. Gen. by Allen Goodman, Asst. Atty. Gen., for the State.

DECISION

JOSEPH C. MODUGNO, Judge.

These are claims for personal injuries arising from an incident which took place at Creedmoor State Hospital on September 23, 1972.

Both claims were consolidated for trial since they had their origins in the same occurrence.

By stipulation the trial was limited to the issue of liability.

On September 23, 1972 William J. Heegan and Joseph T. Ward, who were employed by the City of New York as uniformed patrolmen, were performing a 1:00 a.m. to 8:00 a.m. tour of duty in a radio motor patrol car in Sector A of the 111th Precinct, Queens, New York. At 5:15 a.m. the officers received the following radio transmission: 'Building #51, Creedmoor Hospital, man with a gun.' After receiving that transmission they proceeded to Building #51. Upon arrival they were informed by members of the Creedmoor security patrol that there was a man in the building with a 'real gun'. Both officers entered with their service revolvers drawn and proceeded to the lounge on the ground floor. As they entered the lounge, the officers observed a group of approximately five males and three females. Patrolman Ward subsequently holstered his gun when he was assured by one of the women, a Miss Regina Bailey, that he would not need it. At that point a man stepped from behind Miss Bailey and aimed a handgun at Patrolman Ward. The officer pinned the assailant's gun hand with his right hand, but was unable to stop him from firing his weapon. He fired six times, hitting Patrolman Ward twice in the left shoulder and once in the right thigh and hitting Patrolman Heegan in the scrotum and left thigh. Patrolman Heegan returned fire, firing three times, hitting the assailant twice in the right side and once in the cheek. The perpetrator was eventually subdued and later identified as Meredith Gilbert. He was charged with two counts of attempted murder, two counts of assault first degree, two counts of reckless endangerment and possession of a deadly weapon. This weapon was later identified as a .32 Cal. Smith & Wesson revolver.

It appears that the assailant, while not an employee of Creedmoor, was attending a 'swim and soul breakfast' party for Creedmoor employees who had successfully received their high school equivalency diplomas from Hofstra University. Although Gilbert was not a Creedmoor employee, he had participated in the inauguration of the high school equivalency program at the hospital and his wife, Fanny G. Gilbert, was the organizer of said party.

On the date of this grievous assault Mrs. Gilbert was employed on a part-time basis at Creedmoor as an assistant to the Chief of Nursing Services and Training. At the same time she was employed by Hofstra University in conjunction with its high school equivalency program. In fact, Mrs. Gilbert was in charge of that program at Creedmoor where Mental Hygiene Assistant Aides had enrolled for the purpose of upgrading their educational background. The Hofstra program was part of Creedmoor's Education Services Program for Employees.

Plans for the party were initiated in early July, 1972 and in August permission to use the lounge in Building #51 was obtained from Miss Patty Goodman, the Chief of Education and Training. Permission to use the kitchen and pool facilities was also obtained from Mrs. Eileen Schmidt, the Chief of Rehabilitation. The party was intended to run from 12 midnight to 4 a.m. on September 23, 1972. It was scheduled at that time so that people working the 4 p.m. to midnight shift on September 22nd could attend.

While the party was interracial, approximately ninety per cent of those in attendance were black. That percentage reflected the number of blacks enrolled in the equivalency program. Since the majority of the people in the program were black, the theme of the party was 'Black America'. In accordance with that theme, posters of black leaders were placed on the walls of the lounge in Building #51. In all approximately forty-five people attended the party.

At approximately 4:10 a.m. the assailant, Meredith Gilbert, became rowdy, threatened his wife and several other people with a handgun. No action was immediately taken. However when the assailant persisted in his threats, the security patrol at Creedmoor called the 111th Precinct for assistance. It should be noted that members of Creedmoor's security force do not carry handguns. As related above, when Patrolmen Heegan and Ward entered the lounge they were shot by Mr. Gilbert.

The patrolmen have instituted their suits against the State claiming that the State was negligent in allowing said party to occur; in failing to properly supervise and control it; in failing to search and inspect the persons entering said party; in failing to remove Mr. Gilbert from the premises and in allowing racist and anti-police posters to be displayed on its premises.

The claimants also allege that the State should have foreseen the occurrence of this shooting incident.

This Court cannot agree. One of the prerequisites of liability based on negligence is that the risk of injury or damage must have been reasonably foreseeable. Foreseeability of the risk of injury or damage is the quintessential and indispensable requisite of negligence, the 'conditio sine qua non'. In other words, negligence is gauged by the ability to anticipate; the risk must lie within the range of apprehension. It is where in the exercise of ordinary care, injury is unforeseeable, or is the result of an act of God, that the negligent wrongdoer is exculpated. Le Roux v. State, 307 N.Y.2d 397, 121 N.E.2d 386; Payne v. City of New York, 277 N.Y. 393, 14 N.E.2d 449; Heeney v. Topping, 18 A.D.2d 618, 234 N.Y.S.2d 724, aff'd, 13 N.Y.2d 1049, 245 N.Y.S.2d 770, 195 N.E.2d 455; Sauer v. Hebrew Institute of Long Island, Inc., 17 A.D.2d 245, 233 N.Y.S.2d 1008, aff'd, 13 N.Y.2d 913, 243 N.Y.S.2d 859, 193 N.E.2d 642; Flynn v. City of New York, 13 A.D.2d 237, 216 N.Y.S.2d 54, aff'd, 10 N.Y.2d 930, 224 N.Y.S.2d 11, 179 N.E.2d 855; Nucci v. Warshaw Constr. Corp., 13 A.D.2d 699, 214 N.Y.S.2d 91, aff'd, 12 N.Y.2d 16, 234 N.Y.S.2d 196, 186 N.E.2d 401; Bolsenbroek v. Tully & Di Napoli, Inc., 12 A.D.2d 376, 212 N.Y.S.2d 323, aff'd, 10 N.Y.2d 960, 224 N.Y.S.2d 280, 180 N.E.2d 61; Popkin v. Jewish Young Men's & Women's Assn., 282 App.Div. 824, 122 N.Y.S.2d 559, aff'd, 306 N.Y. 704, 117 N.E.2d 804; Shaw v. Irving Trust Co., 249 App.Div. 659, 291 N.Y.S. 571, aff'd, 274 N.Y. 632, 10 N.E.2d 586; Simpson v. Fiero, 237 App.Div. 62, 260 N.Y.S. 323, aff'd, 262 N.Y. 461, 188 N.E. 20; Johnston v. Blanchard, 276 App.Div. 839, 93 N.Y.S.2d 338, aff'd, 301 N.Y. 599, 93 N.E.2d 494; Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99; McGlone v. William Angus, 248 N.Y. 197, 161 N.E. 469; Schubart v. Hotel Astor, 168 Misc. 431, 5 N.Y.S.2d 203, aff'd, 255 App.Div. 1012, 8 N.Y.S.2d 567, aff'd, 281 N.Y. 597, 22 N.E.2d 167; Klein v. Hoffman, 15 A.D.2d 899, 225 N.Y.S.2d 628, aff'd, 12 N.Y.2d 850, 236 N.Y.S.2d 626, 187 N.E.2d 476; Brown v. American Mfg. Co., 209 App.Div. 621, 205 N.Y.S. 331; Daly v. State, 226 App.Div. 154, 235 N.Y.S. 331; Daly v. J. M. Horton Ice Cream Co., 166 App.Div. 28, 151 N.Y.S. 657; McDonald v. Central School Dist., 179 Misc. 333, 39 N.Y.S.2d 103, aff'd, 264 App.Div. 943, 36 N.Y.S.2d 438, aff'd, 289 N.Y. 800, 47 N.E.2d 50; Rucker v. Andress, 38 A.D.2d 684, 327 N.Y.S.2d 91, 848; Vincent v. Dickinson, 36 A.D.2d 570, 317 N.Y.S.2d 682 and Tirado v. Lubarsky, 49 Misc.2d 543, 268 N.Y.S.2d 54, aff'd, 52 Misc.2d 527, 276 N.Y.S.2d 128.

Not every possible accident due to unusual and reasonably foreseeable combinations of circumstances is included in the concept of actionable negligence; reasonable foresight is required, but not prophetic vision. The test of actionable negligence is not what could have been done to have prevented a particular accident, but what a reasonably prudent and careful person would have done under the circumstances in the discharge of his duty to the injured party. Failure to guard against a remote possibility of accident, or one which could not, in the exercise of ordinary care, be foreseen, does not constitute negligence. Negligence does not exist unless there is a reasonable likelihood of danger as the result of the act complained of. Cartee v. Saks Fifth Ave., 277 App.Div. 606, 101 N.Y.S.2d 761, aff'd, 303 N.Y. 832, 104 N.E.2d 375; Collins v. Noss, 258 App.Div. 101, 15 N.Y.S.2d 475, aff'd, 283 N.Y. 595, 28 N.E.2d 20; Payne v. City of New York, supra; McKinney v. New York Consol. R. Co., 230 N.Y. 194, 129 N.E. 652; Polemenakos v. Cohn, 234 App.Div. 563, 256 N.Y.S. 5, aff'd, 260 N.Y. 524, 184 N.E. 77; O'Neill v. Port Jervis, 253 N.Y. 423, 171 N.E. 694; Dressler v. Merkel, Inc., 247 App.Div. 300, 284 N.Y.S. 697, aff'd, 272 N.Y. 574, 4 N.E.2d 744; Stanton v. State, 26 N.Y.2d 990, 311 N.Y.S.2d 28, 259 N.E.2d 494; Morris v. Troy Sav. Bank, 32 A.D.2d 237, 302 N.Y.S.2d 51, aff'd, 28 N.Y.2d 619, 320 N.Y.S.2d 78, 268 N.E.2d 805 and Brutman v. Lane's Dept. Store, 28 A.D.2d 690, 281 N.Y.S.2d 123.

On the other hand, negligence may be established although the defendant did not have notice of the particular manner in which an accident would occur, so long as it was reasonably foreseeable by an ordinarily prudent person. As a general proposition, liability for negligence turns upon the foreseeability of the exact nature and extent of the injury which does in fact ensue. But liability has been denied where it could not...