Werner v. State, 57226

• Decision Date: 06 July 1981
• Docket Number: No. 57226,57226
• Citation: 53 N.Y.2d 346,441 N.Y.S.2d 654,424 N.E.2d 541
• Parties: , 424 N.E.2d 541 Juanita WERNER, Individually and as Administratrix of the Estate of Ronald Werner, Deceased, Appellant, v. STATE of New York et al., Respondents. (Claim)
• Court: New York Court of Appeals Court of Appeals

Page 654

441 N.Y.S.2d 654

53 N.Y.2d 346, 424 N.E.2d 541

Juanita WERNER, Individually and as Administratrix of the Estate of Ronald Werner, Deceased, Appellant, v. STATE of New York et al., Respondents.

(Claim No. 57226.)

Court of Appeals of New York.

July 6, 1981.

Eugene C. Tenney, Buffalo, for appellant.

Robert Abrams, Atty. Gen. (Peter J. Dooley and Shirley Adelson Siegel, Asst. Attys. Gen., of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

A claimant who applies for, is awarded and accepts workers' compensation death benefits is barred by the exclusive remedy and finality provisions of the Workers' Compensation Law from maintaining a wrongful death action against the deceased worker's former employer for intentional assault. The order of the Appellate Division, 79 A.D.2d 873, 434 N.Y.S.2d 548 granting the State's motion for summary judgment dismissing the complaint should, therefore, be affirmed.

Ronald Werner was employed as a guard at the Attica Correctional Facility. Taken hostage at the beginning of the prisoner insurrection now generally referred to as the Attica uprising, Werner was killed by a gun shot wound to the chest during the September 13, 1971 retaking of the prison by State troopers and correction officers. On October 1, 1971 his widow, Juanita, filed a claim for compensation on behalf of herself and her three daughters with the Workers' Compensation Board, and on February 8, 1972 she was notified that at a hearing held January 26, 1972 an award had been made requiring payment of funeral expenses and a weekly stipend commencing September 13, 1971. It is not disputed that the compensation payments were received and accepted by Juanita Werner on behalf of herself and her children until she remarried, that upon her remarriage she received a remarriage award at the expiration of which the payments for the benefit of the children were increased, and that the latter payments continued thereafter. Claimant's brief states that she was advised by State officials that benefits under the Workers' Compensation Law were her exclusive remedy, but there is nothing in the record to support the statement.

Whatever be the fact with respect to the filing of the compensation claim, claimant concedes in her brief that in December, 1971, after conferring with an attorney, she filed a notice of intention to file claim against the State and on December 23, 1972 filed her notice of claim against the State and certain State employees with the Court of Claims. Two claims were stated: the first for the negligent failure to warn Ronald Werner of the impending riot and to protect him against imprisonment and physical injury by the rioting inmates during the period September 9, 1971 through September 13, 1971; the second for his death which it was alleged occurred when "a State Police Officer * * * while acting in the course of his employment by the State and for the purpose of forwarding the State's interest, without just cause or provocation and with great force and violence, wilfully and intentionally assaulted and battered the Claimant's decedent by firing several shots of a gun at Claimant's decedent, one or more of which shot and struck him in the head, chest and back, thereby causing his death."

The State moved to dismiss as to the individual defendants for lack of Court of Claims jurisdiction and as to the claims against the State for failure to state a cause of action and because claimant having received compensation payments had elected her remedy. As to the individual defendants the motion was granted; as to the State it was granted as to the claim based on negligence but otherwise denied. The State appealed but that appeal has never been perfected. Thereafter, the State moved for summary judgment on the basis of claimant's continued receipt of compensation benefits. The Court of Claims denied that motion on the basis of our decision in Jones v. State of New York, 33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236, but on appeal the Appellate Division, Fourth Department, by a divided court, reversed and granted summary judgment dismissing the claim. The Appellate Division majority distinguished the Jones decision, which involved a claim on behalf of the dependents of another deceased Attica hostage identical in language to that quoted above, on the ground that in Jones claimant had neither applied for nor accepted compensation benefits. From the Appellate Division's order claimant appeals. We affirm.

Claimant presents the threshold argument that trial of the action in the Court of Claims having begun, the court should not have entertained and the Appellate Division could not grant a motion for summary judgment. We perceive no abuse of discretion in the courts below having entertained the motion, which if granted would dispose of the action. The State urges us to dismiss the intentional assault claim on the ground that it fails to state a cause of action, because it does not plead the nonexclusivity of compensation (see O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347; Murray v. iCity of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560) and does not allege a deliberate purpose on the part of the State to cause Werner's death (as distinct from responsibility of the State on the basis of respondeat superior for the reckless acts of its employees; see Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; Estupinan v. Cleanerama Drive-In Cleaners, 38 A.D.2d 353, 329 N.Y.S.2d 448; 2A Larson, Workmen's Compensation, § 68.21, p. 13-11). Neither contention is properly before us on this appeal, however. The sufficiency of the complaint was in issue on the State's first motion under CPLR 3211 to dismiss the complaint, but is not a ground of the motion which is the subject of the present appeal. The State appealed the denial of that first motion to the Appellate Division but never perfected the appeal. The subject of the present appeal is the State's motion, made some time after denial of its first motion, which seeks summary judgment pursuant to CPLR 3212 and does not address the sufficiency of the complaint.

We come, then, to the primary issue on this appeal: whether acceptance of compensation benefits forecloses the action against the State for intentional assault held permissible in Jones v. State of New York, 33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236, supra. ¹ Section 11 of the Workers' Compensation Law provides that "The liability of an employer * * * shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death," and section 8 of the Court of Claims Act "is careful to provide that, in waiving immunity, the exclusiveness of the compensation remedy against the State is not impaired" (Maloney v. State of New York, 3 N.Y.2d 356, 361, 165 N.Y.S.2d 465, 144 N.E.2d 364). Furthermore, section 29 of the Workers' Compensation Law, which makes clear that by accepting compensation benefits an injured employee or his dependents does not foreclose action against a tortfeasor not "in the same employ", expressly provides in subdivision 6 that "The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of his death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ." Finally, section 23 of the Workers' Compensation Law provides that "An award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided." ²

The combination of those provisions requires affirmance of the Appellate Division's order. Had claimant not chosen to accept benefits, she would under our decision in Jones v. State of New York (supra), have been free to maintain her wrongful death action for intentional assault. In that action she would have faced a heavy burden of proof in attempting to establish the use of excessive force by the State (id., 33 N.Y.2d, at p. 280, 352 N.Y.S.2d 169, 307 N.E.2d 236) and may perhaps have been defeated by findings that the excessive force resulted from reckless rather than deliberate acts (see Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, supra; Estupinan v. Cleanerama Drive-In Cleaners, 38 A.D.2d 353, 329 N.Y.S.2d 448, supra; Santiago v. Brill Monfort Co., 11 A.D.2d 1041, 205 N.Y.S.2d 919, affd. 10 N.Y.2d 718, 219 N.Y.S.2d 266, 176 N.E.2d 835; Artonio v Hirsch, 3 A.D.2d 939, 163 N.Y.S.2d 489; Walstein v. Blank, 35 Misc.2d 1015, 231 N.Y.S.2d 733). To the contrary, however, claimant applied for compensation benefits and received them on the basis of a finding of the board reading "Accident notice and causal relationship established for causally related death. Case closed."

Thus, the board has determined that Ronald Werner's death was accidental and occurred in the course of his employment, both issues clearly within its jurisdiction. That finding of accidental death is binding between the parties, not only because of section 23 of the Workers' Compensation Law, but also on settled principles of res judicata which apply to administrative hearings and determinations when the agency involved is acting, as does the compensation board, in a quasi-judicial capacity (Matter of Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452, see Matter of Venes v. Community School Bd. of Dist. 26, 43 N.Y.2d 520, 402 N.Y.S.2d 807, 373 N.E.2d 987; Restatement, Judgments 2d § 131, Comments g, h; Ann., 84 A.L.R.2d 1036). And while the same acts involving an assault by a coemployee may be accidental as to the employer but intentional as to the coemployee (see, e. g., Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d...