Court Reinstates Negligence Claims Against City Arising From Fatal Shooting By Off-Duty Officer

Every first-year law student reads the case of Palsgraf v Long Is. R.R. Co., 248 NY 339 [1928], arguably the leading case in New York on the issue of whether a defendant had a duty to plaintiff in a negligence case.

In Gonzalez v. City of New York, 2015 Slip NY Slip Op 06869 (App. Div. 1st Dept. Sept. 22, 2015) – a case which “raises classic issues of duty and proximate cause” – applied the reasoning of Palsgraf to reverse summary judgment for defendant.

Here are the facts, as summarized by the court:

This action arises from the shooting death of Shirley Fontanez by her boyfriend, Police Officer Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Fontanez was 16 years old when she began her relationship with Maselli, who was then 38 years old. Fontanez is survived by her infant daughter, Angeshely Sasha Gonzalez, the sole distributee of Fontanez’s estate. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleges that numerous complaints were made to the City of New York concerning Maselli’s abusive conduct toward Fontanez and Sasha, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez’s wrongful death.

Supreme Court “granted the City summary judgment dismissing the action on the ground that any negligence on defendant City’s part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez’s death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment.”

This, according to the First Department, was error.

Here is the law:

Integral to [the elements of duty and proximate cause] is a question of foreseeability. However, the questions of foreseeability are distinct. In determining duty, a court must determine whether the injured party was a foreseeable plaintiff – whether she was within the zone of danger created by defendant’s actions (Palsgraf v Long Is. R.R. Co., 248 NY 339 [1928]). A plaintiff must show that defendant’s actions constituted a wrong against her, not merely that defendant acted beneath a required standard of care and that plaintiff was injured thereby. She must show that a relationship existed by which defendant was legally obliged to protect the interest of plaintiff. The existence of a duty is a question of policy to be determined with reference to legal precedent, statutes, and other principles comprising the law.

In determining proximate cause, an element of foreseeability is also present – the question then is whether the injury to plaintiff was a foreseeable result of defendant’s breach, i.e., what manner of harm is foreseeable? ... The question of proximate cause is generally a question of fact for a jury.

Applying the law, the court held that defendant was not entitled to summary judgment in this case. From the decision:

[I]n this case, plaintiffs’ negligence claims do not depend on whether Maselli acted within the scope of his employment or whether the City participated in, authorized, or ratified Maselli’s tortious conduct. Rather, the alleged breach of duty stems from the claim that during Maselli’s employment with the City, the City became aware or should have become aware of problems with Maselli that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that plaintiff’s damages were caused by the City’s negligent retention, or supervision of Maselli. …

[B]oth the type of harm that occurred and the person on whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law. Clearly, the government has a duty to minimize the risk of injury to members of the public that is presented by the policy of permitting police officers to carry guns off duty. The City could reasonably have anticipated that its negligence in failing to discipline an officer who had violent propensities would result in the officer injuring someone with his gun. Thus, when an officer misuses his weapon, a jury might reasonably find that the misuse was proximately caused by the government’s negligence, if proven, in supervising or retaining a police officer with known violent propensities. Furthermore, it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.