Wyatt v. State

176 A.D.2d 574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1991
• Status: Published

Opinions

— Judgments, Court of Claims, entered July 10, 1990, which, after a bifurcated nonjury trial (before Adolph C. Orlando, J.), on the issue of liability, dismissed the claimants’ claims against the State of New York, reversed, on the law and the facts, liability on the part of the State of New York is found, judgment is directed to be entered in favor of claimants on the issue of liability and the matter is remanded to the Court of Claims for a trial on the issue of damages, without costs.

On March 21, 1986, as the result of a traffic dispute, claimants were shot and wounded by an off-duty correction officer, Kenneth Robinson, employed by the New York State Department of Correctional Services at its Taconic Correctional Facility (referred to throughout the trial as the "Correction” Department).

Both claimants testified that they did not strike or hit the officer in any way but were merely talking to him and that the officer who seemed agitated shot them without warning. Claimant Plunkett testified that as he lay on the ground wounded, Robinson, gun in hand, came over and kicked him in the head. The officer testified that claimants pulled him out of his car by the hair and, although he showed his correction officer’s shield, they punched him for approximately seven to eight minutes before he drew his revolver and fired two warning shots before shooting each claimant at a range of approximately four feet, one in the hip and one in the abdomen.

The officer was arrested, his gun was confiscated and he was taken to the hospital, where, despite his claim of having been beaten, no bruises were found on his body and his clothing was intact, the only noticeable injury being a contusion of the right foot. Although the officer was immediately suspended from his employment, and he testified twice before a Grand Jury, no departmental or criminal charges resulted.

Less than two years earlier, on April 14, 1984, while off-duty on unpaid sick leave, the officer shot Princess, a small mixed breed puppy he encountered while walking on crutches on a Bronx street at about 2:00 a.m. The dog, a family pet, apparently was barking and running loose in the parking lot of a funeral home, its owner’s business.

The dog’s owner, Hector Marquez, was not present at the time, but when he was told by his nephew that Princess had been shot, he called 911 and then went after Robinson who had continued walking. When he confronted the officer and asked "why did you shoot the dog?”, Robinson responded "I going shoot you, too.” The owner backed away and the police arrived in several minutes, but did not arrest Robinson after he showed them his correction officer’s badge.

Mr. Marquez testified that he telephoned the Correction Department and told them that Robinson had threatened him and his nephew and was acting "[i]n a crazy way.” He was told that the Department would investigate. Approximately two years later, he received a telephone call from the Correction Department and related the incident again.

Despite Mr. Marquez’s complaint, the Department of Correctional Services failed to investigate the matter until IV2 years later, at which time the matter was closed without any findings or disciplinary action being taken against the officer, the Department apparently accepting without further inquiry Officer Robinson’s claim that he thought the dog was about to attack him.

The trial court found that such investigation was not thorough, but concluded that the fact that the Department did not pursue a more exhaustive and extensive investigation of the incident does not in any way indicate that the officer was incompetent, dangerous or otherwise emotionally unstable. Hence, the court concluded, although the prior discharge of the weapon was clearly excessive and the Department of Correctional Services could have been more stringent in its investigation and requirements, it could not have prevented the shooting incident underlying these claims.

However, the question is not whether the subject incident could have been prevented as such, but whether the Department was negligent in failing to thoroughly investigate the prior incident or take any remedial action and whether such negligence was a proximate cause of claimants’ injuries?

The Department of Correctional Services does not require or even desire its off-duty peace officers to carry firearms. Those employees who enjoy peace officer status and elect, for personal reasons, to carry firearms while off-duty must do so in accordance with departmental rules. Those rules specify that an officer on unpaid leave for personal or health reasons loses his or her peace officer status during such leaves and may not carry a firearm possessed by virtue of such status.

Three days after he shot Princess, Officer Robinson was so notified in writing. Nevertheless, despite a clear violation of its rules, the Department of Correctional Services took no disciplinary action, which its Deputy Inspector General testified would have included confiscating the officer’s weapon pending investigation and, if the charges were sustained, other sanctions, including prohibiting him from carrying a weapon while off-duty. She testified that she knew of no instance where an officer involved in an off-duty shooting incident in which an individual was injured was returned to duty without a complete investigation.

Where, from the particular circumstances presented, it is reasonable for a public employer to conclude that the retention of an employee may involve a known risk of bodily harm to others, the agency’s discretion is limited and superseded by its duty to abate that risk if in related circumstances danger to others is reasonably to be foreseen (McCrink v City of New York, 296 NY 99, 106).

It goes without saying, that if the Department’s investigation had found that the officer’s 1984 shooting of the dog was unjustified, the officer could possibly have been suspended or removed from his position. At the very least, as is evident from the testimony of the Department’s Deputy Inspector General, his right to carry a weapon while off-duty would have been revoked. Regardless of any finding of fault, which could have resulted in the misdemeanor charge of unjustifiably injuring or killing an animal (Agriculture and Markets Law § 353), the record is clear that the officer violated departmental regulations by carrying an unlicensed firearm while on unpaid sick leave.

In light of the officer’s demonstrated propensity to react violently and fire his weapon in a non-criminal and nonviolent street confrontation, the Department’s failure to restrict or revoke his carrying of a firearm or at the very least to evaluate him psychologically and provide him with special training or counselling must be deemed negligent under the circumstances presented. Where the Department of Correctional Services made no meaningful effort to comply with its own rules and policies, such omission cannot be cured by later supposition that, had a proper investigation been made of the 1984 incident, the employee’s status would have remained unchanged. (See, Haddock v City of New York, 75 NY2d 478, 485.) In any event, the Trial Judge dismissed for legal insufficiency and, under the circumstances, this was clearly error.

As an afterthought, the dissent cites the recent Court of Appeals decision in Mon v City of New York (78 NY2d 309). The case is not applicable because our determination is based on the failure of the State Department of Correctional Services to exercise any discretion and simply to slough off the issue. Concur—Sullivan, J. P., Rosenberger and Kupferman, JJ.