Valdez v City of New York

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[*1] Valdez v City of New York 2008 NY Slip Op 51999(U) [21 Misc 3d 1107(A)] Decided on March 12, 2008 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2008
Supreme Court, Bronx County

Carmen Valdez, individually and as mother and natural guardian of CEASAR MARTI and ARIEL MARTI, Plaintiffs

against

City of New York and Jose Torres, Defendants



16507/1997



APPEARANCES:

For Plaintiffs

Edward Sivin Esq. and Glenn Miller Esq.

Sivin & Miller, L.L.P.

170 Broadway, New York, NY 10038

For Defendants

Lavanya Pisupati, Assistant Corporation Counsel

198 East 161st Street, Bronx, NY 10451

Lucy Billings, J.



I presided at the trial of this action before a jury March 15-27, 2006. On March 28, 2006, the jury rendered a verdict awarding plaintiff Valdez $3,000,000.00 for past pain and suffering, $250,000.00 for past medical expenses, $5,000,000.00 for future pain and suffering over 40 years, and $180,000.00 for future medical expenses over five years and awarding plaintiffs Ceasar and Ariel Marti $750,000.00 each for past pain and suffering. Defendants move to set aside the verdict or reduce the verdict on past and future pain and suffering on the ground that the verdict is unsupported by legally sufficient evidence, against the weight of the evidence, and excessive. For the reasons explained below the court denies defendants' motion. C.P.L.R. §§ 4404(a), 5501(c).

I.SUMMARY OF THE EVIDENCE

The testimony of plaintiffs, their experts, and other witnesses established that plaintiffs suffered and plaintiff Valdez continued to suffer at the time of the trial a combination of injuries that diminished their enjoyment of life. On July 20, 1996, as Valdez exited her apartment, her ex-boyfriend, Felix Perez, pushed her back into the apartment and shot her three times, striking her face and arm, and then shot himself, all in view of her sons Ceasar and Ariel Marti, who were five years old at the time. Miraculously, Valdez survived, but could not speak because one of the gunshots had destroyed her mouth and jaw. Neighbors summoned the police and an ambulance.

The day before the shooting, Valdez had reported to Officer Jose Torres of the New York City Police Department Domestic Violence Unit in Valdez's precinct that Perez had threatened to kill her in violation of an order of protection. She informed Officer Torres that out of fear for her family's safety in her apartment where Perez could find her, she was relocating with her sons to her grandmother's apartment. Officer Torres advised Valdez instead to remain in her home, [*2]assuring her that the police were proceeding to arrest Perez right away.

A.PLAINTIFF VALDEZ'S INJURIES

In addition to the testimony regarding the shooting, plaintiffs presented evidence of the numerous successive reconstructive surgeries Valdez underwent. During her long recovery, she could not open her mouth and suffered excruciating pain in her face and head. Her functioning was limited further by an inability to eat or shower, difficulty sleeping, persistent facial muscle spasms and headaches, hearing loss in the right ear, memory loss, and lack of concentration. She also testified as to her mental anguish over being separated from her children, her physical condition, and even Perez's death.

Harvey Plasse M.D., plaintiffs' expert otolaryngologist, examined Valdez April 17, 2000, reviewed her medical records, and testified that she sustained three gunshot wounds from Perez's attack, one traveling from her cheekbone to her ear, another from her cheekbone to her hard palate, and the third through her forearm. The bullets injured blood vessels in her head and neck, lacerated her right inner ear, destroyed most of her soft palate, and caused abnormal involuntary movements and dizziness. Valdez underwent surgery to repair her mouth, which required mechanical ventilation for several days, when she was sedated, was fed intravenously, and received blood transfusions. During her recovery, Valdez could not ingest food or liquid orally because a fistula between her nose and throat allowed food to pass through her nose. She wore a prosthesis to cover her fistula until its repair in April 2000 after several surgeries. Eventually, she was able to whisper to communicate, but traumatic arthritis restricted her ability to open and close her mouth. She also has permanent pain in her right ear, cheekbone, and jaw and positional vertigo, which prevents her from avoiding everyday hazards.

Dr. Philip Harvey, plaintiffs' clinical psychologist, examined Valdez in 2002 and again in 2006 and found she regularly experiences nightmares and flashbacks, is stressed easily, becomes distressed when discussing trauma, cannot form bonds with men, and experiences excessive sensitivity to loss. Dr. Harvey diagnosed Valdez with post-traumatic stress disorder and major depression from the shooting and concluded that she requires further psychiatric treatment.

B.PLAINTIFF CHILDREN'S INJURIES

Plaintiffs' testimony establishes that Ceasar and Ariel Marti remember Valdez's shooting and Perez's suicide and suffered graphic nightmares of those horrifying events. During their mother's hospitalization, they were placed in foster care and separated from their family. Since then, the boys have encountered academic difficulties, Ceasar has experienced difficulty interacting with other children in his school and neighborhood, and Ariel remains reluctant to venture outside the family's apartment. Dr. Harvey examined Ceasar and Ariel in 2002 and found they exhibited deteriorated social interaction since the shooting. Dr. Harvey diagnosed each with an anxiety disorder.

II.DEFENDANTS' MOTION TO SET ASIDE THE VERDICT

Defendants move to set aside the verdict pursuant to C.P.L.R. §§ 4404(a) and 5501(c), on the grounds that it is unsupported by the record, against the weight of the evidence, and materially deviates from reasonable compensation. Defendants' claims do not dictate disturbing the verdict. A.LEGAL SUFFICIENCY OF THE EVIDENCE REGARDING DEFENDANTS' LIABILITY

Defendants claim that plaintiffs failed to prove defendants' liability. The court may not set aside the verdict based on legal insufficiency of the evidence unless no valid line of reasoning and permissible inferences would lead rational jurors to the conclusion they reached. Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271-72 (2006); Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978); Sow v. Arias, 21 AD3d 317 (1st Dep't 2005). Legal sufficiency of the evidence is a question of law for the court. See Cohen v. Hallmark Cards, 45 NY2d at 498; Sow v. Arias, 21 AD3d 317. Setting aside a verdict based on legal insufficiency of evidence results in a judgment of dismissal. Cohen v. Hallmark Cards, 45 [*3]NY2d at 498; Smith v. Au, 8 AD3d 1, 2 (1st Dep't 2004).

1.An Assumed Duty Arising from a Special Relationship

Defendants contend that none of plaintiffs may recover under any theory because a municipality ordinarily is not liable for injuries sustained from its failure to provide police protection. Laratro v. City of New York, 8 NY3d 79, 81-82 (2006); Mastroianni v. County of Suffolk, 91 NY2d 198, 203 (1997); Balsam v. Delma Eng'g Corp., 90 NY2d 966, 967 (1997); Kircher v. City of Jamestown, 74 NY2d 251, 255 (1989). Defendants may be liable, however, for failing to provide police protection if they previously formed a special relationship with plaintiffs. Laratro v. City of New York, 8 NY3d at 83; Mastroianni v. County of Suffolk, 91 NY2d at 203; Kircher v. City of Jamestown, 74 NY2d at 256-57; Cuffy v. City of New York, 69 NY2d 255, 260 (1987).

Here, plaintiffs' evidence established defendants' duty to the children as well as their mother even though the order of protection did not cover the children. A special relationship between plaintiffs and defendants formed when (1) the police assumed a duty to act on plaintiffs' behalf and (2) knew that police inaction posed a risk of harm, (3) the police and plaintiffs had direct contact, and (4) plaintiffs justifiably relied on the police performing the assumed duty. Laratro v. City of New York, 8 NY3d at 83; Pelaez v. Seide, 2 NY3d 186, 202 (2004); Cuffy v. City of New York, 69 NY2d at 260; France v. New York City Bd. of Educ., 40 AD3d 268 (1st Dep't 2007). The police then were obligated to perform the assumed duty non-negligently. Lee v. New York City Tr. Auth., 249 AD2d 93, 94 (1st Dep't 1998).

Defendants' service of the order of protection for Valdez satisfies the first two elements by showing defendants' assumption of a duty and knowledge that plaintiffs were at risk of harm. Mastroianni v. County of Suffolk, 91 NY2d at 204. While the order did not specifically cover the children, and they were not in direct contact with the police, Valdez's contacts sufficed, as the children were members of her household, and she acted on their behalf. Laratro v. City of New York, 8 NY3d at 84; Cuffy v. City of New York, 69 NY2d at 261-62; Sorichetti v. City of New York, 65 NY2d 461, 471 (1985); Harris v. City of New York, 147 AD2d 186, 191 (1st Dep't 1989). See Kircher v. City of Jamestown, 74 NY2d at 256-57. Moreover, while Valdez reported that Perez threatened only her, Officer Torres knew she had two young children totally dependent on her care and support, and thus any such threat obviously endangered them as well. Kircher v. City of Jamestown, 74 NY2d at 258 n.2; Cuffy v. City of New York, 69 NY2d at 261-62; Sorichetti v. City of New York, 65 NY2d at 469.

Finally, Officer Torres's assurances to Valdez, that the police were going to arrest Perez "immediately" due to his threat to Valdez, furnished a basis for justifiable reliance on the police performing that duty. Transcript of Proceedings at 142 (Mar. 15, 2006). See Mastroianni v. County of Suffolk, 91 NY2d at 205; Levy v. City of New York, 232 AD2d 160, 161-62 (1st Dep't 1996); Harris v. City of New York, 147 AD2d at 191. In particular, when she reported the threat, she further reported to Officer Torres that she intended to relocate to her grandmother's home, but he advised her to remain at her home. Defendants presented evidence controverting plaintiffs' justifiable reliance, through Officer Torres's denial of any telephone calls received from Valdez July 19, 1996, but, because plaintiffs' evidence raised a factual question to be resolved by the jury, the jury was free to reject defendants' evidence and accept plaintiffs' evidence as to their justifiable reliance. Kimmell v. Schaefer, 89 NY2d 257, 264 (1996); Joseph v. NRT Inc., 43 AD3d 312, 313 (1st Dep't 2007); Steinhardt Group v. Citicorp, 272 AD2d 255, 257 (1st Dep't 2000). See Matter of Veski, 29 AD3d 250, 251 (1st Dep't 2006). 2.The Children's Claim for Negligent Infliction of Emotional Distress

Since plaintiff children claim only mental and emotional injuries, they bore the burden to prove the elements for infliction of emotional distress. Plaintiff children may recover for negligent infliction of emotional distress, upon a showing that they suffered emotional injury [*4]from observing their immediate family member's injury caused by defendants' negligence that exposed the children as well as their family member to an unreasonable risk of bodily harm. Trombetta v. Conkling, 82 NY2d 549, 552 (1993); Bovsun v. Sanperi, 61 NY2d 219, 230-31 (1984); Stamm v. PHH Veh. Mgt. Servs., LLC, 32 AD3d 784, 786 (1st Dep't 2006); Hass v. Manhattan & Bronx Surface Tr. Operating Auth., 204 AD2d 208 (1st Dep't 1994). See DeCintio v. Lawrence Hosp., 299 AD2d 165, 166 (1st Dep't 2002); Pizarro v. 421 Port Assoc., 292 AD2d 259, 260 (1st Dep't 2002).

Defendants contend that plaintiff children may not recover because they failed to present evidence that they were in the zone of danger. The zone of danger requirement is premised on the concept of negligence that, by unreasonably endangering plaintiffs' physical safety, defendants have breached a duty owed to plaintiffs for which they may recover all damages sustained, including damages occasioned by witnessing the suffering of an immediate family member whom defendants' conduct also injured. Trombetta v. Conkling, 82 NY2d at 552; Bovsun v. Sanperi, 61 NY2d at 229; DeCintio v. Lawrence Hosp., 299 AD2d at 166; Pizarro v. 421 Port Assoc., 292 AD2d at 260.

Plaintiffs contend that, (1) if they have proved defendants' breach of a duty arising from a special relationship to the children as well as their mother, the children need not meet the zone of danger requirement, and, (2) conversely, if they prove this and the other elements of negligent infliction of emotional distress, the children need not prove a special relationship with defendants. The zone of danger requirement applies, however, even where defendants breach a duty arising from a special relationship, because the zone of danger defines not a zone where a duty is owed, but, once a duty is established, the zone where that duty is breached. Trombetta v. Conkling, 82 NY2d at 552-53; Bovsun v. Sanperi, 61 NY2d at 232-33; DeCintio v. Lawrence Hosp., 299 AD2d at 166.

In the more common situation, where defendants endanger plaintiffs by negligently wielding a dangerous instrument, for example, defendants owe a duty under all circumstances not to engage in such conduct. Here, where defendants endangered plaintiffs by failing to provide police protection, defendants owed no duty to provide that protection until they created a special relationship. The zone of danger is a requirement independent of defendants' breach of a duty of care; limits who may recover for emotional trauma from that breach, to other persons closest to the one who suffered physical injury from the breach; and thus assures that the emotional trauma is legitimate. Trombetta v. Conkling, 82 NY2d at 552-53; Bovsun v. Sanperi, 61 NY2d at 232-33; Pizarro v. 421 Port Assoc., 292 AD2d at 260.

In any event, the evidence here met the independent zone of danger requirement. Since plaintiffs' testimony disclosed that the children were near their mother when they observed Perez shoot her three times, they were in the zone of danger when Perez shot her. Bovsun v. Sanperi, 61 NY2d at 230; Hass v. Manhattan & Bronx Surface Tr. Operating Auth., 204 AD2d 208; Maney v. Maloney, 101 AD2d 403, 405 (3d Dep't 1984). Given his violent, erratic, if not irrational, conduct, a bullet could have struck them as well. Plaintiffs' testimony further established that the children, while witnessing the shooting in the zone of danger, feared for their safety, Hass v. Manhattan & Bronx Surface Tr. Operating Auth., 204 AD2d at 209, despite the lack of evidence that Perez pointed his gun directly at them. Lubecki v. City of New York, 304 AD2d 224, 238 (1st Dep't 2003); Allinger v. City of Utica, 226 AD2d 1118, 1120 (4th Dep't 1996).

Moreover, the children unquestionably feared for their mother's safety. As long as they were in the zone of danger, they need not have feared for their own safety, too, even though, at their age, their own safety depended on their mother's well-being. Bovsun v. Sanperi, 61 NY2d at 230 n.8, 231 n.10, 232; Hass v. Manhattan & Bronx Surface Tr. Operating Auth., 204 AD2d at 208-209.

3.Recklessness

Defendants further contend that the evidence is insufficient to demonstrate their recklessness. Proof of defendants' recklessness is inconsequential regarding their liability for [*5]breach of a duty arising from a special relationship. Although the authority cited above does not refer directly to recklessness, a special relationship still is required even where plaintiffs prove defendants' recklessness in failing to protect plaintiffs. Kromer v. City of Onondaga, 26 AD3d 792 (4th Dep't 2006); Page v. City of Niagara Falls, 277 AD2d 1047 (4th Dep't 2000). See Pelaez v. Seide, 2 NY3d at 203-204.

This requirement stems from the principle that defendants owe a duty to provide police protection to specific persons only when defendants by their conduct have determined how they are to allocate their resources in particular circumstances, created a special relationship with plaintiffs who were seeking protection, and limited the duty to protect to those individuals. E.g., Pelaez v. Seide, 2 NY3d at 198-99, 202-203; Kircher v. Carlson, 74 NY2d at 256-57; Sorichetti v. City of New York, 65 NY2d at 469-70. Defendants then incur liability because, having induced plaintiffs' justifiable reliance, defendants' failure to provide the promised protection, whether negligently or recklessly, amounts to more than withholding a benefit and instead to active infliction of injury through their affirmative conductwhether negligent or reckless. E.g., Kircher v. Carlson, 74 NY2d at 256, 259; Cuffy v. City of New York, 69 NY2d at 258; Sorichetti v. City of New York, 65 NY2d at 470; Lee v. New York City Tr. Auth., 249 AD2d at 94.

Nor does proof of defendants' recklessness relieve plaintiff children from proving all the elements of negligent infliction of emotional distress, including the children's presence in the zone of danger. While proof of all the elements of reckless infliction of emotional distress would provide the children a substitute basis for recovery, plaintiffs never claimed nor proved these elements. Howell v. New York Post Co., 81 NY2d 115, 122 (1993); Gross v. Empire State Bldg. Assoc., 4 AD3d 49, 58 (1st Dep't 2004). Defendants' reckless infliction of emotional distress would not require the children's presence in the zone of danger, but instead would require defendants' extreme, outrageous, and reprehensible conduct, involving "a campaign of harassment": an almost unattainable level of proof that plaintiffs never attempted to mount. Id. at 56. See, e.g., Howell v. New York Post Co., 81 NY2d at 122; Khan v. Duane Reade, 7 AD3d 311, 312 (1st Dep't 2004).

Proof of defendants' recklessness nonetheless renders defendants fully liable for the judgment despite the jury's apportionment of 50% liability to Perez. C.P.L.R. § 1602(7); Lubecki v. City of New York, 304 AD2d at 226, 235-36; Spatz v. Riverdale Greentree Rest., 256 AD2d 207, 208 (1st Dep't 1998). To establish defendants' liability for recklessness, plaintiffs must show that defendants intentionally acted unreasonably by disregarding, with conscious indifference, a known risk that raised a high probability of harm. Matter of New York City Asbestos Litig., 89 NY2d 955, 956 (1997); Saarinen v. Kerr, 84 NY2d 494, 501 (1994). Given Valdez's report that Perez threatened to kill her, Officer Torres's knowledge that Perez was on parole for a felony conviction and had been violent in the past, and Officer Torres's advice that Valdez remain at her apartment, defendants' failure even to attempt to arrest Perez reasonably may be viewed as recklessness. Hanover Ins. Co. v. D & W Cent. Sta. Alarm Co., 164 AD2d 112, 115 (1st Dep't 1990). See Hartford Ins. Co. v. Holmes Protection Group, 250 AD2d 526, 527-28 (1st Dep't 1998); Guston Furs v. Comet Realty Corp., 225 AD2d 417 (1st Dep't 1996).

B.WEIGHT OF THE EVIDENCE REGARDING DAMAGES

The court may not set aside the jury's verdict as against the weight of the evidence if the verdict was based on a fair interpretation of the evidence. Cohen v. Hallmark Cards, 45 NY2d at 499; McDermott v. Coffee Beanery, Ltd., 9 AD3d 195, 206 (1st Dep't 2004). Here, a fair interpretation of the trial evidence supports the verdict for pain and suffering experienced by Valdez due to her extensive physical and mental injuries and by Ceasar and Ariel Marti due to their mental trauma from witnessing the shooting. Insofar as the testimony of the parties' witnesses may have conflicted, the jury was free to resolve such conflicts. Rivera v. 4064 Realty Co., 17 AD3d 201, 203 (1st Dep't 2005); Bota v. Kaminsky, 299 AD2d 259 (1st Dep't 2002).

III.MATERIAL DEVIATION FROM REASONABLE COMPENSATION

The evidence of Valdez's past and future pain and suffering displayed a unique, almost unimaginable combination of injuries with similarly unique, unimaginably unbearable effects. [*6]Although the psychological effects on her children were not so unusual, the horror of the precipitating event, especially to five year olds, was equally unimaginable and unique. For all three plaintiffs, the evidence also uniformly weighed in their favor; defendants presented no evidence controverting plaintiffs' evidence of their pain and suffering. Kane v. Coundorous, 11 AD3d 304, 305 (1st Dep't 2004); Reed v. City of New York, 304 AD2d at 9-10; Martelly v. New York City Health & Hosps. Corp., 276 AD2d 373, 374 (1st Dep't 2000); Medina v. Chile Communications, Inc., 15 Misc 3d 525, 531 (Sup. Ct. Bronx Co. 2006). See Mazariegos v. New York City Tr. Auth., 230 AD2d 608, 609 (1st Dep't 1996); Wiseberg v. Douglas Elliman-Gibbons & Ives, 224 AD2d 361, 362 (1st Dep't 1996). Viewing the evidence in this light, few, if any, decisions provide useful benchmarks. Medina v. Chile Communications, Inc., 15 Misc 3d at 532.

IV.MAXIMUM REASONABLE COMPENSATION FOR PLAINTIFFS' PAIN AND SUFFERING

It is incumbent on defendants, in seeking to reduce the jury's award, to cite verdicts, including their fate on appeal, that assess injuries similar to plaintiffs', experienced for comparable periods. Id. See Donlon v. City of New York, 284 AD2d 13, 14, 18 (1st Dep't 2001). Defendants' authority focusing on only physical injury does not account for plaintiffs' evidence regarding Valdez's bullet wounds to her face, jaw, ear, and skull, reconstructive surgeries, and permanent pain and limitations from vertigo and arthritis, all without any rebuttal evidence. Lauter v. Village of Great Neck, 231 AD2d 553, 554 (2d Dep't 1996). Decisions dealing with damage awards to plaintiffs who suffer a combination of severe physical injuries with lingering psychological disorders requiring lengthy treatment demonstrate that the awards to Valdez are within a reasonable range of awards for past pain and suffering, Man-Kit Lei v. City Univ. of NY, 33 AD3d 467, 468 (1st Dep't 2006); Weigl v. Quincy Specialties Co., 1 AD3d 132, 134 (1st Dep't 2003); Lubecki v. City of New York, 304 AD2d at 238; Hotaling v. CSX Transp., 5 AD3d 964, 971 (3d Dep't 2004), and future pain and suffering. Man-Kit Lei v. City Univ. of NY, 33 AD3d at 468; Paek v. City of New York, 28 AD3d 307, 308 (1st Dep't 2006); Weigl v. Quincy Specialties Co., 1 AD3d at 134. See Brewster v. Prince Apts., 264 AD2d at 617. Similarly, the award for past pain and suffering to plaintiff children is not excessive. Lubecki v. City of New York, 304 AD2d at 232, 238.

V.CONCLUSION

In sum, the jury awarded past and future damages based on plaintiffs' largely uncontroverted evidence of those damages that do not so exceed amounts supported by a fair interpretation of the evidence as to require disturbing the jury's determination. Nor was the jury's $3,000,000.00 award for past pain and suffering or $5,000,000.00 award for future pain and suffering to Valdez or $750,000.00 award for past pain and suffering to each of her sons, Ceasar and Ariel Marti, so excessive as to materially deviate from reasonable compensation. Given Valdez's unique combination of injuries and the children's uniquely horrifying experience, the jury here was uniquely qualified to assess their damages and set its own benchmarks. See Medina v. Chile Communications, Inc., 15 Misc 3d at 537. Therefore the court denies defendants' motion to set aside the verdict or reduce the verdict as to past and future pain and suffering for plaintiffs. C.P.L.R. §§ 4404(a), 5501(c).

DATED: March 12, 2008

_____________________________

LUCY BILLINGS, J.S.C.