| Mays v City of Middletown |
| 2010 NY Slip Op 01459 [70 AD3d 900] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Tyrone Mays, Respondent-Appellant, v City ofMiddletown et al., Appellants-Respondents. |
—[*1] Laub Delaney, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu], of counsel), for respondent-appellant.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal fromso much of an order of the Supreme Court, Orange County (Slobod, J.), dated March 10, 2009,as denied that branch of their motion which was for summary judgment dismissing the causes ofaction to recover damages for negligence, and the plaintiff cross-appeals from so much of thesame order as granted that branch of the defendants' motion which was for summary judgmentdismissing the cause of action to recover damages for violation of 42 USC § 1983.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiff was arrested by police based upon his participation in a fight which occurred ina crowded parking lot when local bars were closing for the night. The police handcuffed theplaintiff with his hands behind his back and seated him, legs extended, on the ground in theparking lot. A large and unruly crowd remained in the vicinity.
While the plaintiff was seated in the parking lot, a member of the crowd who believed thatthe plaintiff had hit her mother during an earlier fight approached while holding a beer bottlehidden behind her pocketbook. Although three police officers were standing within a few feet ofthe plaintiff, the woman was allowed to approach. When she reached the plaintiff, the womanstruck him in the face with the bottle, causing a deep laceration requiring approximately 87stitches.
Two police officers testified at their depositions that they offered the plaintiff first aid,although two other officers recalled that a bystander offered aid. An ambulance arrived withinthree to five minutes of the attack on the plaintiff.
The plaintiff commenced this action, inter alia, to recover damages for negligence and forviolation of 42 USC § 1983. The defendants moved for summary judgment dismissing thecomplaint, and the Supreme Court, inter alia, granted that branch of the motion which was for[*2]summary judgment dismissing the cause of action under 42USC § 1983, but denied that branch of the motion which was for summary judgmentdismissing the causes of action to recover damages for negligence. The defendants appeal andthe plaintiff cross-appeals.
The "scope and extent" of a defendant's duty to a plaintiff is "defined by the risk of harmreasonably to be perceived" (Vetrone v Ha Di Corp., 22 AD3d 835, 837 [2005]).Although a plaintiff must show that the defendant reasonably could have foreseen the dangeragainst which the defendant allegedly failed to guard, the plaintiff "need not demonstrate. . . that the precise manner in which the accident happened, or the extent ofinjuries, was foreseeable" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
A third party's intervening act will be deemed a superseding cause relieving the defendant ofliability where the act is "of such an extraordinary nature or so attenuates defendant's negligencefrom the ultimate injury that responsibility for the injury may not be reasonably attributed to thedefendant" (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). Although an interveningcriminal act may sever the causal connection under some circumstances (see Ingrassia vLividikos, 54 AD3d 721, 724 [2008]), some criminal acts may be "a reasonably foreseeableconsequence of circumstances created by the defendant" (Bell v Board of Educ. of City ofN.Y., 90 NY2d 944, 946 [1997] [internal quotation marks omitted]; see Kush v City ofBuffalo, 59 NY2d at 33). Specifically, "[w]hen the intervening, intentional act of another isitself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard againstsuch conduct will not be relieved of liability when that act occurs" (Kush v City ofBuffalo, 59 NY2d at 33).
Here, because the plaintiff was in their custody, the police had a duty to safeguard himagainst foreseeable dangers (see generally Sanchez v State of New York, 99 NY2d 247,252 [2002]). Under these circumstances, even if the precise form the danger would take was notapparent (see Derdiarian v Felix Contr. Corp., 51 NY2d at 315), the defendants failed todemonstrate that a danger to the plaintiff from one or more members of the crowd who remainedaggressive or who had been involved in the fight was unforeseeable (see Bell v Board ofEduc. of City of N.Y., 90 NY2d 944 [1997]; Li v Midland Assoc., LLC, 26 AD3d473 [2006]). Since the defendants failed to meet their prima facie burden of showing that theassailant's actions were unforeseeable, the Supreme Court properly denied that branch of theirmotion which was for summary judgment dismissing the causes of action to recover damages fornegligence.
To establish a prima facie case that a municipal actor has violated 42 USC § 1983, aplaintiff must show that "(1) the challenged conduct was attributable at least in part to a personwho was acting under color of state law and (2) the conduct deprived the plaintiff of a rightguaranteed under the Constitution of the United States" (Snider v Dylag, 188 F3d 51, 53[1999]). Although individual actors may be held liable under 42 USC § 1983, amunicipality can be held liable "only where the municipality itself causes the constitutionalviolation at issue" (Canton v Harris, 489 US 378, 385 [1989], citing Monell v NewYork City Dept. of Social Servs., 436 US 658 [1978]). Thus, "[i]t is only when the executionof the government's policy or custom . . . inflicts the injury that the municipalitymay be held liable under § 1983" (Canton v Harris, 489 US at 385 [internalquotation marks omitted]). In this case, the plaintiff contends that the defendants violated hiscivil rights in that the officers involved in the incident were inadequately trained and failed topromptly render him first aid.
Under "limited circumstances," proof of a municipality's "failure to train can be the basis forliability under § 1983" (Canton v Harris, 489 US at 387 [internal quotation marksomitted]). However, "[o]nly where a municipality's failure to train its employees in a relevantrespect evidences a 'deliberate indifference' to the rights of its inhabitants can such ashortcoming be properly thought of as a city 'policy or custom' that is actionable under §1983" (Canton v Harris, 489 US at 389; see Pendleton v City of New York, 44AD3d 733, 736-737 [2007] ). To sustain a claim based upon inadequate training, a plaintiff mustdemonstrate not only that there is a deficiency in the actor's training, but also that the deficiencyidentified is "closely related to the ultimate injury" (Canton v Harris, 489 US at 391).[*3]
Here, the defendants made a prima facie showing that thepolice officers were adequately trained. Moreover, although the defendants failed to make aprima facie showing that the officers were not negligent in guarding him, that failure did notprevent them from establishing their entitlement to judgment as a matter of law dismissing thecause of action under 42 USC § 1983 (see County of Sacramento v Lewis, 523 US833 [1998]; Lombardi v Whitman, 485 F3d 73, 79 [2007]). In opposition to thedefendants' prima facie showing, the plaintiff failed to identify any specific deficiency in theofficers' training or to identify any way in which additional training would have improved theofficers' response to the situation with which they were confronted (see Walker v City ofNew York, 974 F2d 293, 297 [1992], cert denied 507 US 961 [1993], 507 US 972[1993]).
Similarly, assuming that arrested persons have a right to prompt medical care under theEighth Amendment of the United States Constitution (see Estelle v Gamble, 429 US 97,103 [1976], cert denied 434 US 974 [1977]; Canton v Harris, 489 US at 381-382,391), a plaintiff cannot sustain a cause of action under 42 USC § 1983 absent proof thatthe police exhibited "deliberate indifference to [his or her] serious illness or injury" by providinginadequate treatment, "intentionally denying or delaying access to medical care[,] orintentionally interfering with the treatment once prescribed" (Estelle v Gamble, 429 USat 104-105; Whitley v Albers, 475 US 312, 319 [1986]). In this case, there is noindication that the delay of a few minutes had any ill effect on the plaintiff's injury, or causedhim any pain that he would not otherwise have suffered (see Estelle v Gamble, 429 US at103, 105; see generally Land v City of New York, 177 AD2d 477, 477-478 [1991]). Inaddition, there is no indication that the police delayed or interfered with emergency personnelonce they arrived (see Estelle v Gamble, 429 US at 104-105).
Thus, the Supreme Court properly granted that branch of the defendants' motion which wasfor summary judgment dismissing the cause of action to recover damages for violation of 42USC § 1983.
The plaintiff's remaining contention is without merit. Rivera, J.P., Dickerson, Chambers andHall, JJ., concur.