| Holland v City of Poughkeepsie |
| 2011 NY Slip Op 09277 [90 AD3d 841] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Saul W. Holland, Respondent, v City of Poughkeepsie etal., Appellants, et al., Defendants. |
—[*1] Joseph Petito, Poughkeepsie, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries and for civil rights violationspursuant to 42 USC § 1983, the defendants City of Poughkeepsie, City of PoughkeepsiePolice Department, and Michael Labrada appeal (1), as limited by their notice of appeal andbrief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated May19, 2010, as denied those branches of their motion which were for summary judgment dismissingthe first, second, fourth, and thirteenth causes of action insofar as asserted against the defendantsCity of Poughkeepsie and Michael Labrada, the seventh cause of action insofar as assertedagainst the defendant City of Poughkeepsie, and so much of the third cause of action as allegedstate and federal claims based upon false arrest and false imprisonment insofar as assertedagainst the defendants City of Poughkeepsie and Michael Labrada, and (2), as limited by theirbrief, from so much of an order of the same court dated September 13, 2010, as, in effect, uponreargument, adhered to so much of the original determination in the order dated May 19, 2010, asdenied those branches of their motion which were for summary judgment dismissing the first,second, fourth, and thirteenth causes of action insofar as asserted against the defendants City ofPoughkeepsie and Michael Labrada, the seventh cause of action insofar as asserted against thedefendant City of Poughkeepsie, and so much of the third cause of action as alleged state andfederal claims based upon false arrest and false imprisonment insofar as asserted against thedefendants City of Poughkeepsie and Michael Labrada.
Ordered that the appeal from the order dated May 19, 2010, is dismissed, without costs ordisbursements, as the portions of that order appealed from were superseded by the order datedSeptember 13, 2010, made, in effect, upon reargument; and it is further,
Ordered that the order dated September 13, 2010, is modified, on the law, by deleting theprovisions thereof, in effect, upon reargument, adhering to so much of the original determinationin the order dated May 19, 2010, as denied those branches of the motion of the defendants City ofPoughkeepsie, City of Poughkeepsie Police Department, and Michael Labrada which were forsummary judgment dismissing so much of the first, third, and fourth causes of action as allegedviolations of 42 USC § 1983 insofar as asserted against the defendant City ofPoughkeepsie, the seventh cause of action insofar as asserted against the defendant City ofPoughkeepsie, and the second and thirteenth causes of action insofar as asserted against the [*2]defendants City of Poughkeepsie and Michael Labrada, andsubstituting therefor a provision, upon reargument, vacating so much of the order dated May 19,2010, as denied those branches of the motion of the defendants City of Poughkeepsie, City ofPoughkeepsie Police Department, and Michael Labrada which were for summary judgmentdismissing so much of the first, third, and fourth causes of action as alleged violations of 42 USC§ 1983 insofar as asserted against the defendant City of Poughkeepsie, the seventh cause ofaction insofar as asserted against the City of Poughkeepsie, and the second and thirteenth causesof action insofar as asserted against the defendants City of Poughkeepsie and Michael Labrada,and thereupon granting those branches of the motion; as so modified, the order dated September13, 2010, is affirmed insofar as appealed from, without costs or disbursements.
This action to recover damages for personal injuries and civil rights violations arises from anincident involving the plaintiff, an epileptic, who refused transport to the hospital after havingsuffered four grand mal seizures, two of which were witnessed by a paramedic and an emergencymedical technician (hereinafter the EMT). According to deposition testimony, after theparamedic administered valium and the plaintiff partially recovered from his seizures, theparamedic called his supervising physician, who instructed him to transport the plaintiff to thehospital because a narcotic had been administered. When the plaintiff refused to go, the EMTcalled the defendant City of Poughkeepsie Police Department (hereinafter the police department)for assistance. Upon responding to the scene, the defendant Officer Michael Labrada attemptedto convince the plaintiff to go to the hospital. The plaintiff became agitated, pulled the monitorleads off his chest, pulled out his IV, and exited the back of the ambulance while screamingobscenities. Labrada and the EMT testified that the plaintiff "lunged" at Labrada. A struggleensued, during which Labrada attempted to restrain the plaintiff and warned him that he wouldbe arrested if he did not stop. When the plaintiff failed to respond to these warnings, Labradaused his taser to incapacitate the plaintiff. Additional police officers arrived, the plaintiff washandcuffed, and he was transported to the hospital in custody for, inter alia, disorderly conduct.Labrada testified inconsistently at his deposition as to whether the EMT and paramedic were theonly people present in the vicinity while these events were occurring.
The plaintiff commenced this action against, among others, the City of Poughkeepsie, thepolice department, and Labrada (hereinafter collectively the defendants), alleging various NewYork common-law causes of action and federal civil rights violations under 42 USC §1983. The defendants moved for summary judgment dismissing the complaint insofar as assertedagainst them. Insofar as relevant to this appeal, the Supreme Court denied those branches of themotion which were for summary judgment dismissing the state and federal claims under the first,second, fourth, and thirteenth causes of action insofar as asserted against the City and Labrada,the state and federal claims under the seventh cause of action insofar as asserted against the City,and so much of the third cause of action as alleged state and federal claims based upon falsearrest and false imprisonment insofar as asserted against the City and Labrada. The defendantsmoved for leave to reargue these branches of their motion, and the Supreme Court, in effect,upon reargument, adhered to so much of the original determination as denied these branches ofthe motion. The defendants appeal, and we modify.
The first four causes of action are premised upon allegations of excessive force (first cause ofaction), violation of the right to "bodily integrity" by the use of excessive force and arrest withoutjust cause (second cause of action), false arrest and false imprisonment (third cause of action),and assault and battery (fourth cause of action). Each of these causes of action alleged that theCity and Labrada should be held liable pursuant to both New York common law and 42 USC§ 1983.
Addressing first the New York common-law claims, the Supreme Court properly, in effect,upon reargument, adhered to so much of the original determination as denied those branches ofthe defendants' motion which were for summary judgment dismissing those claims under thefirst, third, and fourth causes of action insofar as asserted against the City and Labrada.
With respect to the first cause of action, "[c]laims that law enforcement personnel usedexcessive force in the course of an arrest are analyzed under the Fourth Amendment and its [*3]standard of objective reasonableness" (Ostrander v State of NewYork, 289 AD2d 463, 464 [2001]; see Campagna v Arleo, 25 AD3d 528, 529 [2006]). That analysis"requires a careful balancing of the nature and quality of the intrusion on the individual's FourthAmendment interests against the countervailing governmental interests at stake" (Graham vConnor, 490 US 386, 396 [1989] [internal quotation marks and citations omitted]). The useof force must be judged "from the perspective of a reasonable officer on the scene, rather thanwith the 20/20 vision of hindsight," recognizing that "police officers are often forced to makesplit-second judgments—in circumstances that are tense, uncertain, and rapidlyevolving—about the amount of force that is necessary in a particular situation" (id.at 396-397; see Campagna v Arleo, 25 AD3d at 529). Because of its intensely factualnature, the question of whether the use of force was reasonable under the circumstances isgenerally best left for a jury to decide (see Harvey v Brandt, 254 AD2d 718, 719 [1998]).If found to be objectively reasonable, the officer's actions are privileged under the doctrine ofqualified immunity (see Hayes v City ofAmsterdam, 2 AD3d 1139, 1140 [2003]; Higgins v City of Oneonta, 208 AD2d1067, 1071 n 1 [1994]).
Here, the defendants failed to eliminate a triable issue of fact as to whether Labrada's use of ataser to restrain the plaintiff, either to arrest him or to restrain him for his own safety, wasexcessive (cf. Draper v Reynolds, 369 F3d 1270, 1278 [2004], cert denied 543US 988 [2004]; Diederich v NyackHosp., 49 AD3d 491, 494 [2008]; Gagliano v County of Nassau, 31 AD3d 375, 376 [2006]).Moreover, unlike the claims pursuant to 42 USC § 1983, a municipality may be heldvicariously liable for torts committed by its employee while acting within the scope of his or heremployment (see Eckardt v City ofWhite Plains, 87 AD3d 1049, 1051 [2011]; Ashley v City of New York, 7 AD3d 742, 743 [2004]).Accordingly, the Supreme Court properly, in effect, upon reargument, adhered to so much of theoriginal determination as denied that branch of the defendants' motion which was for summaryjudgment dismissing so much of the first cause of action as alleged excessive force pursuant toNew York common law insofar as asserted against the City and Labrada (see Harvey vBrandt, 254 AD2d at 718-719).
The third cause of action alleged false arrest and false imprisonment, which are two namesfor the same tort (see Lee v City of New York, 272 AD2d 586 [2000]; Jackson vPolice Dept. of City of N.Y., 86 AD2d 860, 860-861 [1982]). To establish a cause of actionalleging false arrest under New York common law, a plaintiff must show that "(1) the defendantintended to confine him [or her], (2) the plaintiff was conscious of the confinement, (3) theplaintiff did not consent to the confinement, and (4) the confinement was not otherwiseprivileged" (Lee v City of New York, 272 AD2d at 586; see Broughton v State ofNew York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg,423 US 929 [1975]). Probable cause to believe that a person committed a crime is a completedefense to a claim of false arrest (seeFortunato v City of New York, 63 AD3d 880 [2009]). Where the arrest is made withouta warrant, "a presumption arises that it was unlawful, and the burden of proving that the arrestwas otherwise privileged is cast upon the defendant" (Tsachalis v City of Mount Vernon,293 AD2d 525, 525 [2002] [internal quotation marks omitted]; see Broughton v State of NewYork, 37 NY2d at 458; Gagliano v County of Nassau, 31 AD3d at 376). In general,the existence or absence of probable cause is a question of fact and "becomes a question of law tobe decided by the court only where there is no real dispute as to the facts or the proper inferencesto be drawn therefrom" (Fortunato v City of New York, 63 AD3d at 880 [internalquotation marks omitted]; see People v Bigelow, 66 NY2d 417, 420 [1985]).
Here, the plaintiff was charged with disorderly conduct based upon his engagement in"fighting or in violent, tumultuous or threatening behavior" with the "intent to cause publicinconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law §240.20 [1]). Although he was also charged with obstructing a firefighting operation pursuant toPenal Law § 195.15 (2), probable cause for that offense was lacking because nofirefighting operation was occurring. With respect to disorderly conduct, there was evidence thatthe plaintiff was engaged in tumultuous behavior, but a triable issue of fact remains as to whethera reasonable officer could interpret the plaintiff's behavior as being motivated by an "intent tocause public inconvenience, annoyance or alarm" (Penal Law § 240.20 [1]). In addition,although the plaintiff might nevertheless have recklessly caused public inconvenience, thedefendants failed to eliminate a triable issue of fact as to whether the "public" wasinconvenienced by submitting, in support of their motion, Labrada's deposition testimony, whichwas equivocal as to the presence or absence of bystanders other than the ambulance crew. Thesetriable issues of fact with respect to whether Labrada's evaluation of [*4]probable cause was objectively reasonable preclude an award ofsummary judgment in favor of Labrada on the ground of qualified immunity (see Malley vBriggs, 475 US 335, 340 [1986]; Diederich v Nyack Hosp., 49 AD3d at 493;Simpkin v City of Troy, 224 AD2d 897, 898 [1996]). Moreover, the City may be heldvicariously liable under the state law claim for torts committed by Labrada acting within thescope of his employment (see Eckardt v City of White Plains, 87 AD3d at 1051; Ashley v City of New York, 7 AD3d742, 743 [2004]). Accordingly, the Supreme Court properly determined that the defendantsfailed to establish their prima facie entitlement to judgment as a matter of law dismissing somuch of the third cause of action as alleged a New York common-law claim of false arrest andfalse imprisonment insofar as asserted against the City and Labrada (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 315 [2004, Smith, J., concurring]).
The fourth cause of action alleged assault and battery. "To recover damages for battery, aplaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongfulunder all of the circumstances, and intent to make the contact without the plaintiff's consent" (Higgins v Hamilton, 18 AD3d436, 436 [2005]). In light of the defendants' failure to eliminate triable issues of fact as towhether Labrada's use of the taser was excessive or objectively reasonable under thecircumstances, the Supreme Court properly, in effect, upon reargument, adhered to so much ofthe original determination as denied that branch of the defendants' motion which was forsummary judgment dismissing the New York common-law claims of assault and battery insofaras asserted against the City and Labrada.
With respect to the federal claims under the first, third, and fourth causes of action, 42 USC§ 1983 provides that "[e]very person who, under color of any statute, ordinance,regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen ofthe United States . . . to the deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws, shall be liable to the party injured" (Eckardt v City ofWhite Plains, 87 AD3d at 1051-1052 [internal quotation marks omitted]; Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d 700, 703 [2010]). The Supreme Court properly, in effect, uponreargument, adhered to so much of the original determination as denied those branches of thedefendants' motion which were for summary judgment dismissing the federal civil rights claimsunder the first, third, and fourth causes of action insofar as asserted against Labrada because, asnoted, the defendants failed to eliminate a triable issue of fact on the issues of excessive force,false arrest, and assault and battery, which may properly form the basis of a claim under 42 USC§ 1983 (see Hodges v Stanley, 712 F2d 34, 36 [1983]; Eckardt v City of WhitePlains, 87 AD3d at 1051; Delgado vCity of New York, 86 AD3d 502, 511 [2011]).
The first, third, and fourth causes of action, as well as the seventh cause of action, alsoasserted federal claims against the City. "A municipality is not liable under 42 USC § 1983for an injury inflicted solely by its employees or agents" (Hudson Val. Mar., Inc. v Town ofCortlandt, 79 AD3d at 703; see Monell v New York City Dept. of Social Servs., 436US 658, 694 [1978]), or "solely upon the doctrine of respondeat superior or vicarious liability"(Lopez v Shaughnessy, 260 AD2d 551, 552 [1999]; see Connick v Thompson,563 US —, —, 131 S Ct 1350, 1359 [2011]; Eckardt v City of White Plains,87 AD3d at 1052; Alex LL. vDepartment of Social Servs. of Albany County, 60 AD3d 199, 205 [2009]). Thus, to theextent that the first, third, fourth, and seventh causes of action sought to impose vicariousliability on the City for the actions of Labrada pursuant to 42 USC § 1983, the City isentitled to summary judgment dismissing those portions of the causes of action.
To the extent that the first, third, fourth, and seventh causes of action sought to imposeliability on the City as an entity for its own alleged violations of the plaintiff's constitutionalrights, such liability may be imposed only by establishing "a direct causal link between amunicipal policy or custom and the alleged constitutional deprivation" (Canton v Harris,489 US 378, 385 [1989]; see Connick v Thompson, 563 US at —, 131 S Ct at1359 [2011]; Monell v New York City Dept. of Social Servs., 436 US at 694). Theplaintiff must show that "the action that is alleged to be unconstitutional either implements orexecutes a policy statement, ordinance, regulation, or decision officially adopted andpromulgated by that body's officers or has occurred pursuant to a practice so permanent and wellsettled as to constitute a custom or usage with the force of law" (Maio v Kralik, 70 AD3d 1, 10-11[2009] [internal quotation marks, brackets and citations omitted]; see Eckardt v City of WhitePlains, 87 AD3d at 1052).[*5]
Applying this principle, the City established its primafacie entitlement to judgment as a matter of law dismissing the federal claims asserted against itunder the first, third, and fourth causes of action, insofar as such claims were premised uponallegations of Labrada's use of excessive force, false arrest, and assault and battery, respectively.The City adduced evidence sufficient to establish, prima facie, the lack of a causal link betweenits policies, customs, or practices, and the alleged constitutional violations. In opposition thereto,the plaintiff failed to raise a triable issue of fact.
The seventh cause of action alleged, inter alia, that the City was negligent in its training ofpolice officers. Under "limited circumstances," proof of a municipality's "failure to train can [bethe basis for] liability under § 1983" (Canton v Harris, 489 US at 387, 387 n 6).However, "[o]nly where a municipality's failure to train its employees in a relevant respectevidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming beproperly thought of as a city 'policy or custom' that is actionable under § 1983" (id.at 389; see Connick v Thompson, 563 US at —, 131 S Ct at 1359-1360[2011]; Pendleton v City of NewYork, 44 AD3d 733, 736-737 [2007]). Three requirements must be met before liabilitymay be imposed. First, "the plaintiff must show that a policymaker knows 'to a moral certainty'that [his or] her employees will confront a given situation," for liability will not be imposedbased upon failure to train for "rare or unforeseen events" (Walker v City of New York,974 F2d 293, 297 [1992], cert denied 507 US 961, 507 US 972 [1993], quotingCanton v Harris, 489 US at 390 n 10). In this respect, "[a] pattern of similarconstitutional violations by untrained employees is 'ordinarily necessary' " (Connick vThompson, 563 US at —, 131 S Ct at 1360, quoting Board of Comm'rs of BryanCty. v Brown, 520 US 397, 409 [1997]). Second, "the plaintiff must show that the situationeither presents the employee with a difficult choice of the sort that training or supervision willmake less difficult or that there is a history of employees mishandling the situation" (Walkerv City of New York, 974 F2d at 297). Finally, "the plaintiff must show that the wrong choiceby the city employee will frequently cause the deprivation of a citizen's constitutional rights"(id. at 298). Where the plaintiff establishes all three elements, "it can be said withconfidence that the policymaker should have known that inadequate training or supervision was'so likely to result in the violation of constitutional rights, that the policymakers of the city canreasonably be said to have been deliberately indifferent to the need' " (id., quotingCanton v Harris, 489 US at 390).
Here, municipal officials could certainly expect that police officers would be confronted withindividuals who needed medical assistance and could further expect that some individuals wouldrefuse medical assistance. However, a situation such as this—where an individual receivedsome medical assistance, but then violently refused further treatment and transport to the hospitalthat was needed in light of the treatment already rendered—is the sort of "rare orunforeseen event[ ]" for which liability under 42 USC § 1983 does not arise (Walker vCity of New York, 974 F2d at 297; see Connick v Thompson, 563 US at —,131 S Ct at 1360 [2011]). Similarly, while this situation surely presented the police officers witha "difficult choice," it was not "a difficult choice of the sort that training or supervision will makeless difficult" (Walker v City of New York, 974 F2d at 297). In sum, while training indealing with situations like the one at bar might be desirable, any failure on the part of the City tooffer its police officers such training cannot be characterized as "deliberate indifference"(Canton v Harris, 489 US at 389 [internal quotation marks omitted]; Connick vThompson, 563 US at —, 131 S Ct at 1359 [internal quotation marks omitted]). Thus,the City established its prima facie entitlement to judgment as a matter of law dismissing thealleged violation of 42 USC § 1983 based upon negligent training of police officers insofaras asserted against it under the seventh cause of action, and the plaintiff failed to raise a triableissue of fact in opposition thereto.
Further, as correctly conceded by the plaintiff, the New York common-law claim of negligenttraining asserted against the City under the seventh cause of action must also be dismissed.Generally where, as here, the employee was acting within the scope of his employment, theemployer may be held liable for the employee's torts under a theory of respondeat superior, andno claim may proceed against the employer for negligent supervision or training under New Yorkcommon law (see Eckardt v City of White Plains, 87 AD3d at 1051; Talavera v Arbit, 18 AD3d 738,738 [2005]; Karoon v New York City Tr. Auth., 241 AD2d 323 [1997]). Accordingly,the Supreme Court should have, upon reargument, vacated so much of the original determinationas denied that branch of the defendants' [*6]motion which was forsummary judgment dismissing both the state and federal claims premised upon allegations ofnegligent training under the seventh cause of action insofar as asserted against the City, andthereupon granted that branch of the motion.
On appeal, the plaintiff has properly conceded that the thirteenth cause of action to recoverdamages for negligent assumption of a duty should be dismissed as duplicative insofar asasserted against the City and Labrada.
The second cause of action arose from the same facts as the first and third causes of actionand did not allege distinct damages; therefore, that cause of action should have been dismissed asduplicative insofar as asserted against the City and Labrada (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750[2011]; Leonard v Reinhardt, 20AD3d 510 [2005]).
In sum, the Supreme Court properly, in effect, upon reargument, adhered to so much of theoriginal determination as denied those branches of the defendants' motion which were forsummary judgment dismissing the New York common-law claims insofar as asserted against theCity under the first, third, and fourth causes of action, and the New York common law and 42USC § 1983 claims insofar as asserted against Labrada under the first, third, and fourthcauses of action. However, the Supreme Court should have, in effect, upon reargument, vacatedso much of the original determination as denied those branches of the defendants' motion whichwere for summary judgment dismissing the second and thirteenth causes of action insofar asasserted against the City and Labrada, so much of the first, third, and fourth causes of action asalleged violations of 42 USC § 1983 insofar as asserted against the City, and the seventhcause of action insofar as asserted against the City, and thereupon granted those branches of themotion. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.